# Debose v. State of Florida

> District Court of Appeal of Florida · December 11, 2024

URL: https://www.frixlaw.com/law-library/cases/10758067

## Case

- **Court:** District Court of Appeal of Florida
- **Decided:** December 11, 2024
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10758067

## How later opinions describe it (automated extraction)

- discussing a trial court’s duty to determine whether a speedy trial violation has occurred
- noting that “[w]hat constitutes a ‘violation of a similar law of another jurisdiction’ has not been addressed in the context of sexual predator designation,” but finding it unnecessary to do so
- holding that “[d]etermining which Florida crime is analogous to the out of state conviction requires a comparison of the elements of the crimes[]”

## Opinion text

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________

No. 1D2022-0995
_____________________________

KADEEM CORDALE DEBOSE,

Appellant,

v.

STATE OF FLORIDA,

Appellee.
_____________________________

On appeal from the Circuit Court for Alachua County.
Mitchell D. Bishop, Judge.

December 11, 2024

PER CURIAM.

Kadeem Cordale Debose was convicted of unlawful sexual
activity with a minor under section 794.05, Florida Statutes, and
the unlawful use of a two-way communications device in
furtherance of a crime under section 934.215, Florida Statutes. We
affirm Debose’s judgment and sentence on all issues. We write to
briefly address Debose’s claim about venue. We also write to
explain why the court properly designated Debose a sexual
predator, despite the State’s concession of error. In doing so, we
certify conflict with the Fourth District Court of Appeal regarding
its decision in Montgomery v. State, 183 So. 3d 1042 (Fla. 4th DCA
2015).
I

Debose argues that his motion for judgment of acquittal for
the charge of unlawful use of a two-way communications device
should have been granted because the State failed to present
evidence supporting venue. More specifically, Debose argues that
because the State did not present evidence that he sent text
messages from Alachua County (where the trial occurred) venue
was not proven, and therefore his judgment of acquittal motion
should have been granted.

The concurring opinion suggests that we should reject
Debose’s argument because the question of whether the defendant
has been charged and tried in the correct venue should never be
answered by the jury. We are, however, constrained to reject this
suggestion because longstanding Florida Supreme Court cases
have indicated that venue is an appropriate question for the jury
and that a defendant may move for acquittal on the ground that
the State failed to prove proper venue. See, e.g., Hopkins v. State,
42 So. 52 (1906); McKinnie v. State, 32 So. 786 (Fla. 1902); Warrace
v. State, 8 So. 748 (Fla. 1891). But we agree that a question of great
public importance should be certified, so we join in certifying the
questions set out by our colleague in his concurring opinion.

That said, we find that this issue is resolved by section
910.15(1), Florida Statutes, which reads in pertinent part as
follows:

A person charged with committing a crime facilitated
by communication through use of . . . telephone . . . or
another means of electronic data communication may be
tried in the county in which the dissemination originated,
in which the dissemination was made, or in which any act
necessary to consummate the offense occurred.

Regardless of Debose’s location when he texted the victim, the
evidence showed that the victim was in Alachua County when she
received the communications from Debose. Because the
“dissemination” of the communication “was made” in Alachua

2
County, venue was proper there under section 910.15(1), and the
court did not err in denying the motion for judgment of acquittal. 1

II

At sentencing, the State offered Debose’s prior conviction in
Colorado to support designation as a sexual predator. Section
775.21(4)(a) requires an offender to be designated a sexual
predator upon conviction of certain crimes. Sub-subparagraph
(4)(a)1.b. requires designation if an offender is convicted of a
violation of section 794.05—like Debose—and has a previous
violation of one of several Florida laws, “or a violation of a similar
law of another jurisdiction[.]” The trial court found that the
previous Colorado conviction was similar to one of the enumerated
Florida offenses, and thus supported sexual predator designation.

Debose claims that the Colorado statute applies to more
conduct than the Florida statute. 2 Perhaps so. But even if true,
does that fact necessarily mean that a violation of the Colorado
statute is not “similar” to the corresponding Florida law such that
it cannot serve as a prior violation for purposes of the Sexual
Predators Act? Debose claims that it does, and that his conclusion
is supported by the decision in Montgomery. The State agrees, but
we do not.

1 Debose claims that Berry v. State, 306 So. 3d 1256 (Fla. 2d

DCA 2020), supports his argument. Berry does not discuss section
910.15, so we find it inapplicable.
2 Because “[t]he designation of a person as a sexual predator

is neither a sentence nor a punishment but simply a status
resulting from the conviction of certain crimes[,]” it is unclear
whether an alleged error in sexual predator designation is a
“sentencing error” that may be raised by motion under Florida
Rule of Criminal Procedure 3.800(b), as Debose did here.
§ 775.21(3)(d), Florida Statutes. However, the Supreme Court of
Florida has permitted challenges to sexual predator designation
by motion under Florida Rule of Criminal Procedure 3.800(a),
which requires an illegal sentence. See Saintelien v. State, 990 So.
2d 494 (Fla. 2008). Accordingly, we do not address this issue here.

3
A

When it enacted section 775.21, “The Florida Sexual
Predators Act,” in 1993, the Legislature found that “[t]he high level
of threat that a violent or repeat sex offender present[ed] to the
public safety . . . provide[d] the state with sufficient justification to
design and implement innovative mechanisms as part of a strategy
to achieve a significant reduction in the commission of violent and
repeat sex offenses[.]” Ch. 93-277, § 1, Laws of Fla.; see also
§ 775.21(3)(b), Fla. Stat. (same). The Act sets forth criteria
qualifying an offender for sexual predator status, which has gone
almost unaltered since its enactment. Compare ch. 93-277, Laws
of Fla. with § 775.21(4), Fla. Stat. (2022) (changing only the list of
enumerated crimes that trigger the designation). Here are those
criteria:

SEXUAL PREDATOR CRITERIA.—
(a) For a current offense committed on or after
October 1, 1993, upon conviction, an offender shall be
designated as a “sexual predator” under subsection (5),
and subject to registration under subsection (6) and
community and public notification under subsection (7) if:
1. The felony is:
....
b. Any felony violation, or any attempt thereof, of s.
393.135(2); s. 394.4593(2); s. 787.01, s. 787.02, or s.
787.025(2)(c), where the victim is a minor; s. 787.06(3)(b),
(d), (f), or (g); former s. 787.06(3)(h); s. 794.011, excluding
s. 794.011(10); s. 794.05; former s. 796.03; former s.
796.035; s. 800.04; s. 810.145(8)(b); s. 825.1025; s.
827.071; s. 847.0135, excluding s. 847.0135(6); s.
847.0145; s. 895.03, if the court makes a written finding
that the racketeering activity involved at least one sexual
offense listed in this sub-subparagraph or at least one
offense listed in this sub-subparagraph with sexual intent
or motive; s. 916.1075(2); or s. 985.701(1); or a violation
of a similar law of another jurisdiction, and the offender
has previously been convicted of or found to have
committed, or has pled nolo contendere or guilty to,
regardless of adjudication, any violation of s. 393.135(2);
s. 394.4593(2); s. 787.01, s. 787.02, or s. 787.025(2)(c),

4
where the victim is a minor; s. 787.06(3)(b), (d), (f), or (g);
former s. 787.06(3)(h); s. 794.011, excluding s.
794.011(10); s. 794.05; former s. 796.03; former s.
796.035; s. 800.04; s. 825.1025; s. 827.071; s. 847.0133; s.
847.0135, excluding s. 847.0135(6); s. 847.0145; s. 895.03,
if the court makes a written finding that the racketeering
activity involved at least one sexual offense listed in this
sub-subparagraph or at least one offense listed in this
sub-subparagraph with sexual intent or motive; s.
916.1075(2); or s. 985.701(1); or a violation of a similar
law of another jurisdiction[.]

§ 775.21(4)(a), Fla. Stat. A defendant qualifies for sexual predator
status under sub-subparagraph (a)1.b. if he is convicted of an
enumerated offense and has a previous violation of an enumerated
offense. The previous violation may also involve “a similar law of
another jurisdiction.” Id. The meaning of that phrase is discussed
below.

As stated above, the previous offense here was Debose’s
conviction under section 18-3-405.3(1), Colorado Revised Statutes,
which reads as follows:

Any actor who knowingly subjects another not his or her
spouse to any sexual contact commits sexual assault on a
child by one in a position of trust if the victim is a child
less than eighteen years of age and the actor committing
the offense is one in a position of trust with respect to the
victim.

The State contended that the Colorado statute was “similar”
to section 794.011(8)(b) Florida Statutes, which reads as follows:

(8) Without regard to the willingness or consent of the
victim, which is not a defense to prosecution under this
subsection, a person who is in a position of familial or
custodial authority to a person less than 18 years of age
and who:
....
(b) Engages in any act with that person while the person
is 12 years of age or older but younger than 18 years of

5
age which constitutes sexual battery commits a felony of
the first degree[.]

Debose argues that “sexual contact” under the Colorado law is
broader than “act . . . which constitutes sexual battery” under the
Florida law. Debose likewise claims that “position of trust” is
broader than “position of familial or custodial authority.” Since a
possible scenario exists that would violate the Colorado statute but
not the Florida statute, Debose contends that the laws are not
“similar” for purposes of the Sexual Predators Act. We examine the
Sexual Predators Act to determine the proper scope of the term
“similar.”

The Sexual Predators Act itself sets forth the purpose and
intent of the statute, stated in full as follows:

LEGISLATIVE FINDINGS AND PURPOSE;
LEGISLATIVE INTENT.—
(a) Repeat sexual offenders, sexual offenders who
use physical violence, and sexual offenders who prey on
children are sexual predators who present an extreme
threat to the public safety. Sexual offenders are
extremely likely to use physical violence and to repeat
their offenses, and most sexual offenders commit many
offenses, have many more victims than are ever reported,
and are prosecuted for only a fraction of their crimes. This
makes the cost of sexual offender victimization to society
at large, while incalculable, clearly exorbitant.
(b) The high level of threat that a sexual predator
presents to the public safety, and the long-term effects
suffered by victims of sex offenses, provide the state with
sufficient justification to implement a strategy that
includes:
1. Incarcerating sexual predators and maintaining
adequate facilities to ensure that decisions to release
sexual predators into the community are not made on the
basis of inadequate space.
2. Providing for specialized supervision of sexual
predators who are in the community by specially trained
probation officers with low caseloads, as described in ss.
947.1405(7) and 948.30. The sexual predator is subject to

6
specified terms and conditions implemented at
sentencing or at the time of release from incarceration,
with a requirement that those who are financially able
must pay all or part of the costs of supervision.
3. Requiring the registration of sexual predators,
with a requirement that complete and accurate
information be maintained and accessible for use by law
enforcement authorities, communities, and the public.
4. Providing for community and public notification
concerning the presence of sexual predators.
5. Prohibiting sexual predators from working with
children, either for compensation or as a volunteer.
(c) The state has a compelling interest in protecting
the public from sexual predators and in protecting
children from predatory sexual activity, and there is
sufficient justification for requiring sexual predators to
register and for requiring community and public
notification of the presence of sexual predators.
(d) It is the purpose of the Legislature that, upon
the court’s written finding that an offender is a sexual
predator, in order to protect the public, it is necessary
that the sexual predator be registered with the
department and that members of the community and the
public be notified of the sexual predator’s presence. The
designation of a person as a sexual predator is neither a
sentence nor a punishment but simply a status resulting
from the conviction of certain crimes.
(e) It is the intent of the Legislature to address the
problem of sexual predators by:
1. Requiring sexual predators supervised in the
community to have special conditions of supervision and
to be supervised by probation officers with low caseloads;
2. Requiring sexual predators to register with the
Florida Department of Law Enforcement, as provided in
this section; and
3. Requiring community and public notification of
the presence of a sexual predator, as provided in this
section.

7
§ 775.21(3), Fla. Stat. It is against this background that we
consider how to apply the phrase “violation of a similar law of
another jurisdiction.”

“A textually permissible interpretation that furthers rather
than obstructs the document’s purpose should be favored.” Antonin
Scalia & Bryan A. Garner, Reading Law: The Interpretation of
Legal Texts 63 (2012). Given the identification in the Sexual
Predators Act of a “compelling interest in protecting the public
from sexual predators and in protecting children from predatory
sexual activity,” we strive to ensure that any interpretation of the
phrase “similar law of another jurisdiction” furthers the Act’s
stated purpose, rather than reading it so narrowly that we thwart
its purpose.

The purpose and intent section of the Sexual Predators Act
leads us to conclude that the phrase “violation of a similar law of
another jurisdiction” should not be read to exclude designation
merely because an out-of-state law defining a sex crime can
possibly be violated in a situation where a similar Florida statute
might not apply. The statute does not require the prohibited sex
crimes to be identical, just that they be “similar.” See Similar,
American Heritage Dictionary of the English Language (New
College ed. 1982) (“Showing some resemblance; related in
appearance or nature; alike though not identical.” (emphasis
supplied)); Similar, Webster’s Third New Int’l Dictionary of the
English Language: Unabridged (1981) (“[H]aving characteristics
in common[,] very much alike[,] comparable.” (emphasis
supplied)).

This view is consistent with State v. Brake, 796 So. 2d 522
(Fla. 2001), which concerned section 787.025(2)(c), Florida
Statutes (1997). That statute provided a certain penalty to a
person “who, having been previously convicted of a violation of
chapter 794, s. 800.04, or s. 847.0135(5), or a violation of a similar
law of another jurisdiction,” performs a certain act. § 787.025(2)(c),
Fla. Stat. (emphasis supplied). The Supreme Court of Florida
wrote, “Brake was previously convicted of indecency with a child
in Texas, a crime which is similar to that proscribed under
Florida’s section 800.04.” Id. at 525 (emphasis supplied). The Court
did not engage in an elements test to determine whether the Texas

8
crime was an appropriate previous offense; instead, the Court
merely noted that the Texas law was “similar” to an enumerated
Florida law, just as the statute required. In fact, the crime of
“indecency with a child” in Texas can be committed when the
victim is sixteen years old, while the Florida crime identified in
section 800.04 requires that the victim be under sixteen. Compare
Texas Penal Code Ann. § 21.11 (West 1997) with § 800.04, Fla.
Stat. (1997). Despite the difference in the elements of the two
crimes, such that one could violate the Texas law when the act
would not violate the Florida law, the Supreme Court of Florida
still deemed the laws “similar” for the purposes of section
787.025(2)(c), Florida Statutes. Because the same language is used
in section 775.21(4)(a), we should reach the same result.

Accordingly, we find section 18-3-405.3(1), Colorado Revised
Statutes, is “similar” to section 794.011(8)(b), Florida Statutes, for
the purpose of designation as a sexual predator under section
775.021(4)(a), Florida Statutes.

B

1
Montgomery v. State

Debose argues that Montgomery supports his position that an
out-of-state crime cannot be “similar” to a Florida crime, for the
purpose of sexual predator designation, if the Florida crime is
“narrower in scope” than the out-of-state crime. 183 So. 2d at 1044.
We examine Montgomery below.

Montgomery is the only case that has addressed this topic
directly. In Montgomery, the Fourth District considered the
similarities of a Pennsylvania law to section 794.011(4)(b), Florida
Statutes, for the purpose of sexual predator qualification.
Montgomery, 183 So. 3d at 1044. The court determined that the
laws were “not similar,” and that “the Florida statute [was]
narrower in scope than the Pennsylvania statute.” Id.
Furthermore, the court “reject[ed] the State’s argument that the
trial court may look to the underlying facts of the qualifying
offense to establish whether two laws are similar.” Id. at 1045. The
court reached that conclusion by relying on two cases, Fike v. State,

9
63 So. 3d 847 (Fla. 5th DCA 2011) and Dautel v. State, 658 So. 2d
88 (Fla. 1995). See Montgomery, 183 So. 3d at 1045. We examine
those cases in the following sections.

Both the Pennsylvania statute at issue in Montgomery and the
purportedly “similar” Florida statute applied when the offender
coerced the victim into sexual activity. Compare 18 Pa. Stat. and
Cons. Stat. Ann. § 3121(a)(2) (defining rape in part as occurring
“when the person engages in sexual intercourse with a
complainant . . . [b]y threat of forcible compulsion that would
prevent resistance by a person of reasonable resolution”) with
§ 794.011(4)(b), (e)2., Fla. Stat. (defining sexual battery in part as
occurring when a person commits sexual battery and “[t]he
offender coerces the victim to submit by threatening to use force or
violence likely to cause serious personal injury on the victim, and
the victim reasonably believes that the offender has the present
ability to execute the threat”). The Montgomery court held that the
crimes were not “similar” because the coercion necessary to commit
the Pennsylvania offense was a lesser degree than the level of
coercion necessary for the Florida offense, and because the Florida
offense required the victim to have a reasonable belief in the
offender’s ability to execute the threat. Montgomery, 183 So. 3d at
1044.

But even if the court had been correct in concluding that this
thin distinction meant that the Pennsylvania crime was not
“similar” to section 794.011(4)(b), one may respond that it was
similar to the Florida sexual battery provision that does not
require any coercion (only lack of consent), that is, section
794.011(5)(b), Florida Statutes. The Montgomery court rejected
this conclusion, finding that the crime described by section
794.011(5)(b) was ineligible for sexual predator designation, based
on the following reasoning: “The [Florida offense requiring
coercion], which the trial court deemed similar to the Pennsylvania
statute, is a first degree felony that triggers the sexual predator
designation whereas the [Florida offense that does not require
coercion] is a second degree felony which does not.” Montgomery,
183 So. 3d at 1045.

This reasoning is incorrect. Section 775.21(4)(a)1.b., which is
set out in full above, establishes a list of offenses that can result in

10
sexual predator designation if the offender has at least one of the
enumerated prior violations. Nothing in section 775.21(4)(a)1.b.
indicates that only first-degree felonies can trigger sexual predator
designation. In fact, every crime defined in section 794.011 (except
one not relevant here) exposes an offender to sexual predator
designation, including the second-degree felony defined by section
794.011(5)(b). 3 Thus, even if the court had to conclude that the
Pennsylvania law was “similar” to section 794.011(5)(b), that
should have been enough for sexual predator designation.

But regardless of this oversight, the Montgomery court
concluded that an out-of-state law cannot be “similar” to Florida
law permitting sexual predator designation if the out-of-state law
possibly criminalizes any conduct that a corresponding Florida law
does not and explicitly rejected the contention that the court could
look to the facts of the prior out-of-state violation to determine
whether it was “similar” to a Florida crime. We turn now to Dautel
and Fike to examine whether those cases support that reasoning.

2
Dautel v. State

In Dautel the Supreme Court of Florida held that underlying
facts of a crime could not be utilized in determining whether an
out-of-state conviction was “parallel or analogous” to a Florida
crime to calculate a criminal scoresheet. See Dautel, 658 So. 2d at
89. Dautel was specifically addressing the language of Florida Rule
of Criminal Procedure 3.701(d)(5) and how it directs scoring for the
purpose of sentencing under the then-existing “Sentencing
Guidelines.” The Court highlighted that the notes accompanying
rule 3.701 suggested that “[a]ny uncertainty in the scoring of the

3 It is possible that the Montgomery court confused sub-
subparagraph a. of section 775.21(4)(a)1. with sub-subparagraph
b. Under sub-subparagraph a., violation of certain statutes that
constitute capital, life, or first-degree felonies qualifies for sexual
predator designation without any prior offense. If prior offense is
relevant, however, it is because sub-subparagraph b. applies,
which is not limited to first-degree felonies.

11
defendant’s prior record shall be resolved in favor of the
defendant.” Id. at 90.

But scoring out-of-state convictions for sentence calculation is
unlike determining whether an offender should be designated a
sexual predator. An examination of sentencing calculation laws
bears this out.

Under the old Sentencing Guidelines, used in Dautel, prior
offenses were assigned a point value based only on the degree of
the offense. See Fla. R. Crim. P. 3.988 (“Sentencing Guidelines
Scoresheet” listing “Prior Record”). Similarly, under the currently
used Criminal Punishment Code (CPC), prior offenses are
assigned a point value based on the specific statute under which
the offender was convicted. See § 921.0022(3), Fla. Stat. (listing
offense levels for the “Offense Severity Ranking Chart”); Fla. R.
Crim. P. 3.704(c)(1) (noting the offense severity ranking chart
assigns a level to each offense according to the severity of the
offense, “commensurate with the harm or potential for harm to the
community that is caused by the offense, as determined by statute.”
(emphasis supplied)). 4 As with the old Sentencing Guidelines, the
facts of a prior offense are irrelevant to the CPC scoresheet
calculation. See Allen v. State, 916 So. 2d 67, 67 (Fla. 4th DCA
2005) (holding that “[d]etermining which Florida crime is
analogous to the out of state conviction requires a comparison of
the elements of the crimes[]”).

Given these factors, it makes sense that only the elements of
a statute identifying the offense, rather than any underlying facts,

4 Under the Sentencing Guidelines, the points assigned for the

offenses at conviction, prior offenses, and other factors, were used
to calculate a permissible and required sentencing range. See Fla.
R. Crim. P. 3.701(d)(8). Under the CPC, the assigned points are
used to calculate the lowest permissible sentence. See
§ 921.0024(2), Fla. Stat. (defining “lowest permissible sentence”
and specifying how to determine that figure); see also Fla. R. Crim.
P. 3.704(d)(26) (same). Despite this difference, in both instances, a
point value is assigned to prior offenses based solely on the statute
violated.

12
are relevant when scoring a defendant’s prior record for
sentencing. The statute alone provides the relevant data.
Likewise, it makes sense to exclude out-of-state offenses that are
not identical to a Florida offense, for the same reason. More
generally, Dautel involved sentencing, which carries constitutional
considerations that are not present in the context of the Sexual
Predators Act. See State v. McKenzie, 331 So. 3d 666, 673 (Fla.
2021) (“The imposition of sexual predator status under section
775.21 is related to the underlying criminal offense—but is not
itself a sentence or punishment.” (emphasis supplied)). These facts,
combined with the requirement noted by the Dautel court that any
doubts in scoring were to be resolved in the defendant’s favor, 5 give
Dautel limited applicability to the Sexual Predators Act. Unlike
the sentencing rules, the Sexual Predators Act does not require an
interpretative presumption in favor of the defendant, which would
be inconsistent with the priority that section 775.21(3) puts on the
safety of potential victims.

3
Fike v. State

In Fike, the court was confronted with the issue here but
stopped short of reaching an answer. See Fike, 63 So. 3d at 849
(noting that “[w]hat constitutes a ‘violation of a similar law of
another jurisdiction’ has not been addressed in the context of
sexual predator designation,” but finding it unnecessary to do so).
The court rejected the proposition that cases such as Dautel were
binding “because being designated a sexual predator does not
implicate the same considerations or concerns involved in
sentencing” noting that “[s]exual predator designation is not a
punishment, only a status.” Id.; see also § 775.21(3)(d), Fla. Stat.
(“[T]he designation of a person as a sexual predator is neither a
sentence nor a punishment but simply a status resulting from the
conviction of certain crimes.”). Nonetheless, the court ruled that it
did not have to explore the meaning of the phrase “violation of a

5 The restriction still applies to scoring under the CPC. See

Fla. R. Crim. P. 3.704(d)(14)(D) (“Any uncertainty in the scoring of
the offender’s prior record must be resolved in favor of the
offender[.]”).

13
similar law of another jurisdiction” because the prior Michigan
conviction did “not qualify [Fike] for sexual predator designation.”
Fike, 63 So. 3d at 849.

The Fike court was correct in concluding that Dautel was
inapplicable in the sexual predator context. But it was also correct
in rejecting the State’s assertion that the Michigan law was not
“similar” to section 800.04, Florida Statutes for purposes of the
Sexual Predators Act.

The Michigan law at issue in Fike prohibited “[a]ssault with
intent to commit criminal sexual conduct involving sexual
penetration.” Mich. Comp. Laws Ann. § 750.520g(1). 6 It is unclear
whether there is a Florida counterpart to this crime. The State in
Fike argued that the lewd and lascivious offenses in section 800.04
were similar to the Michigan law, but the crimes under that
statute involve sexual acts upon persons under sixteen years old
where consent is irrelevant, neither of which is an element of the
Michigan crime. 7

Because Dautel involves scoring out-of-state convictions for
sentencing determination, and because Fike involved an out-of-
state offense without an identified Florida counterpart, the
Montgomery court should have relied on neither case to invalidate
sexual predator designation. In fact, the Sexual Predators Act does

6 “[T]he elements of assault with intent to commit [criminal

sexual conduct] involving penetration are simply (1) an assault,
and (2) an intent to commit [criminal sexual conduct] involving
sexual penetration.” People v. Nickens, 685 N.W.2d 657, 661 (Mich.
2004). “An assault may be established by showing that one has
attempted an intentional, unconsented, and harmful or offensive
touching of a person.” People v. Starks, 701 N.W.2d 136, 138 (Mich.
2005).
7 Because the Fike court did not address it, we do not consider

whether the Michigan crime of assault with intent to commit
criminal sexual conduct involving penetration is “similar” to
attempted sexual battery prohibited by sections 777.04 and
794.011(5), Florida Statutes.

14
not support this narrow interpretation of the phrase “violation of
a similar law of another jurisdiction.”

C

As stated, the Montgomery court held that a statute
prohibiting sexual intercourse “by threat of forcible compulsion”
was not similar to a Florida statute prohibiting sexual battery
when the offender “coerces the victim to submit by threatening to
use force or violence likely to cause serious personal injury on the
victim.” 183 So. 3d at 1044. Both crimes prohibit sexual acts
accomplished by coercing the victim to submit under threat of
violence. Refusing to call these crimes “similar” defies logic and is
contrary to the stated purposes of the Sexual Predators Act.
Montgomery committed the type of crime that should qualify one
for sexual predator designation in Florida, regardless of any slight
distinctions in the applicable Pennsylvania and Florida laws. The
fact that the level of coercion necessary to commit each crime may
be slightly different, such that one could conceive of a situation
that violates one statute but not the other, does not alter this basic
fact.

The same is true in Debose’s case. Both the Colorado statute
and the Florida statute criminalize sexual activity when the
offender is in a position of authority over a minor victim. The
Colorado statute might encompass sexual acts not specifically
included in the corresponding Florida statute, or might include
situations where an offender’s authority over the victim is not
characterized exactly the same way, but these distinctions do not
alter this basic fact. To claim otherwise would “thwart the purpose
of the statute expressly stated in section 775.21(3)(d).” McKenzie,
331 So. 3d at 674 (Fla. 2021) (Couriel, J., concurring). The Sexual
Predators Act is meant to apply to offenders who have committed
a sex crime (especially a sex crime against minors) in a foreign
jurisdiction, regardless of whether the sex crime is identical to a
Florida sex crime, as long as it is “similar” to one. The crimes here
are plainly “similar.”

In reaching this conclusion, we do not hold that the court may
resort to the facts of the underlying case to determine whether an
out-of-state violation qualifies a defendant for designation. Such a

15
conclusion may be supported by the statute’s focus on the fact that
the offender “committed” a “violation” of the out-of-state law,
rather than the mere fact of conviction, which is the case for
sentencing. The Legislature, in directing whether a certain prior
conviction requires a certain result, is capable of ensuring that the
determination is based on the elements of the offense alone. See,
e.g., § 794.0115(2)(e), Fla. Stat. (stating an out-of-state prior
conviction can qualify a defendant as a “dangerous sexual felony
offender” if the out-of-state conviction is “similar in elements” to
an enumerated Florida crime). But such a conclusion is
unnecessary in light of the requirement that the offender violate
only a “similar law”; the court need not determine whether the
actual violation would necessarily fit precisely under a
corresponding Florida statute.

Thus, we disagree with the Fourth District’s rationale and
holding in Montgomery and certify conflict.

III

Debose also argues that the trial court improperly scored the
Colorado conviction on his CPC scoresheet, because section 18-3-
405.3(1), Colorado Revised Statutes, is not “analogous or parallel”
to section 794.011(8)(b), Florida Statutes. See Fla. R. Crim. P.
3.704(d)(14). As stated above, this question involves a different
analysis than whether the Colorado statute qualifies for sexual
predator designation. For purposes of scoring for sentence
calculation, the Colorado crime is not “analogous or parallel” to the
Florida crime, as explained above.

Because the trial court found that the Colorado crime was
analogous or parallel to the crime identified in section
794.011(8)(b), it scored the Colorado crime at Level 9, which
yielded 23 sentence points. See § 921.0024(1)(a), Fla. Stat. While
the exclusion of these points would have resulted in a lower lowest
permissible sentence than the one used in Debose’s sentencing, the
trial court explicitly ruled that it “would have imposed the same
sentence regardless of how [his] prior conviction for a sex offense
against a minor was calculated,” noting that Debose “was a
registered sex offender for an offense against a minor at the time
of his offense.” The trial court also did not sentence Debose to the

16
lowest permissible sentence. Rather, it sentenced him to twenty
years in prison—well beyond the seven-and-a-half years Debose
scored. These facts alone render the scoresheet error harmless. See
State v. Anderson, 905 So. 2d 111, 112 (Fla. 2005) (holding that a
scoresheet error is harmless if “the record conclusively shows that
the same sentence would have been imposed using a correct
scoresheet[]”).

IV

We affirm Debose’s conviction and sentence. We further hold
that the trial court did not err in concluding that Debose’s Colorado
conviction was a qualifying previous violation for the purposes of
section 775.21(4)(a)1.b., and in designating him a sexual predator
under section 775.21, Florida Statutes. In doing so, we certify
conflict with the Fouth District Court of Appeal regarding its
decision in Montgomery.

AFFIRMED, CONFLICT CERTIFIED, QUESTIONS CERTIFIED.

ROBERTS and NORDBY, JJ., concur; WINOKUR, J., concurs with
opinion.

_____________________________

Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________

WINOKUR, J., concurring.

I agree with the majority that we should affirm Debose’s
judgment and sentence and that we should certify conflict with the
Fourth District Court of Appeal. I write separately to address
Debose’s argument that the trial court erred in denying his motion
for judgment of acquittal on the count of unlawful use of a two-way
communications device in furtherance of a crime because the State
failed to present evidence that he committed the crime in the venue
where he was charged and tried. Because the State failed to
present evidence of proper venue, Debose claims that his

17
conviction on that count must be vacated, and that retrial is
impermissible, because venue is “an element of the offense.” See,
e.g., Johnson v. State, 177 So. 3d 1005, 1009 (Fla. 1st DCA 2015)
(“Venue is an essential element of a crime.” (citing Mosley v. State,
842 So. 2d 855, 857 (Fla. 1st DCA 2002))).

Regardless of whether the State adequately proved venue, I
have fundamental objections to this argument. In explaining why,
I raise practical issues that occur when a jury is required to
determine whether the State has proved venue, issues that
demonstrate essential contradictions that call into question the
entire concept of making venue a jury issue. Second, I argue that
an analysis of the constitutional right to trial before a jury in the
county where the crime was committed leads to the conclusion that
venue is a question of law for the court and should never be
brought before the jury as a question of fact at all.

I

A

A criminal defendant has the right to a “speedy and public
trial by [an] impartial jury in the county where the crime was
committed.” Art. I, § 16, Fla. Const. That constitutional provision
mirrors the venue and vicinage clauses of the U.S. Constitution.
See Art. III, § 2, cl. 3, U.S. Const. (“Trial of all Crimes . . . shall be
held in the State where the . . . Crimes shall have been
committed.”); Amend. VI, U.S. Const. (“In all criminal
prosecutions, the accused shall enjoy the right to a speedy and
public trial, by an impartial jury of the State and district wherein
the crime shall have been committed[.]”). 1

This constitutional right has been a part of our Constitution
since at least 1885. See Declaration of Rights, § 11, Fla. Const.
(1885). That provision remains unchanged. See Art. I, § 16, Fla.
Const. (2018). The Legislature codified the venue requirement in

1 The Vicinage Clause of the United States Constitution
“concerns jury composition” whereas the Venue Clause concerns
“the place where a trial may be held.” Smith v. United States, 599
U.S. 236, 245 (2023).

18
1939. Ch. 19554, §§ 160–69, Laws of Fla. (1939). The venue
statutes are currently in Chapter 910. See § 910.03(1), Fla. Stat.
(“[C]riminal prosecutions shall be tried in the county where the
offense was committed[.]”). The Supreme Court of Florida later
adopted a standard jury instruction regarding venue, which
currently reads, “[t]he State must prove by a preponderance of the
evidence that the alleged crime[s] [was] [were] committed [in this
county] [within the areas of the counties named in the charge[s]].”
See Fla. Std. Jury Instr. (Crim.) 3.8(e). The standard instruction
adds the following comment: “This charge should be given only
when the defendant requests it and there is an issue of fact in the
evidence for the jury to resolve.” Id.

B

The central question driving this opinion is whether venue is
an element, or “essential element,” of any offense. An “essential
element” has been defined as “a required and necessary element of
crime as set forth by the particular substantive criminal statute.”
State v. Tinsley, 683 So. 2d 1089, 1090 (Fla. 5th DCA 1996)
(emphasis supplied); see also Mathis v. United States, 579 U.S. 500,
504 (2016) (“‘Elements’ are the ‘constituent parts’ of a crime’s legal
definition—the things that the ‘prosecution must prove to sustain
a conviction.’” (quoting Black’s Law Dictionary 634 (10th ed.
2014))). “Element” is similarly defined in the Standard Jury
Instructions, which identifies the facts constituting a crime, as set
forth in statute, that the State must prove in order to secure a
conviction. See Fla. Std. Jury Instr. (Crim.), Part 2. For instance,
one of the crimes of which Debose was convicted, Unlawful Sexual
Activity with Certain Minors, is set forth in the Standard Jury
Instructions as follows:

To prove the crime of Unlawful Sexual Activity with a
Certain Minors, the State must prove the following three
elements beyond a reasonable doubt:

1. (Defendant) engaged in sexual activity with (victim).

2. At the time, (defendant) was 24 years of age or older.

3. At the time, (victim) was 16 or 17 years of age.

19
Fla. Std. Jury Instr. (Crim.) 11.7. (emphasis supplied). These
elements are drawn directly from section 794.05, Florida Statutes.

The failure of the State to offer evidence supporting each
element means that the court must grant a defendant’s motion for
judgment of acquittal. See, e.g., Baugh v. State, 961 So. 2d 198,
203–04 (Fla. 2007) (“[T]he prosecution, in order to present a prima
facie case, is required to prove each and every element of the
offense charged beyond a reasonable doubt, and when the
prosecution fails to meet this burden, the case should not be
submitted to the jury, and a judgment of acquittal should be
granted.” (quoting Williams v. State, 560 So. 2d 1304, 1306 (Fla.
1st DCA 1990))).

Under this common-sense approach, venue cannot be an
“element” of a crime, as it is not a constituent part of the definition
of a substantive crime. Nonetheless, the district courts of appeal
are indeed split on the issue of whether venue is an element.
Compare Johnson, 177 So. 3d at 1009 (“Venue is an essential
element of a crime.” (citation omitted)); with McClellion v. State,
858 So. 2d 379, 381 (Fla. 4th DCA 2003) (“Venue is not an element
of the charged crime[.]” (emphasis supplied)); Berry v. State, 306
So. 3d 1256, 1259 (Fla. 2d DCA 2020) (same).

Johnson cites Mosley v. State, 842 So. 2d 855, 857 (Fla. 1st
DCA 2002), for this proposition, which in turn cites Tucker v. State,
459 So. 2d 306 (Fla. 1984), which itself cites (and partially
overrules) State v. Black, 385 So. 2d 1372 (Fla. 1980). Indeed,
Black does state that “[v]enue is an essential element in any
criminal charge.” 385 So. 2d at 1375. Yet the court gives no
analysis for this proposition and cites only the constitutional
provision for venue noted above. Id. This constitutional provision
says nothing about whether venue is an “element” of a crime; it
simply establishes a right to be tried in the county where the crime
was allegedly committed. In any event, the Black court was
addressing whether venue had to be charged in an information or
indictment, not whether venue was a constituent part of an offense
that the State must prove at trial. There is in fact no reason set
forth in Florida law why venue should be considered an element of
an offense in the same manner as the statutory facts of a crime
that the State must prove to secure a conviction.

20
One more word about identification of venue as an “element”
of an offense. The Standard Jury Instructions note that the venue
instruction “should be given only when the defendant requests it
and there is an issue of fact for the jury to resolve.” Fla. Std. Jury
Instr. (Crim.) 3.8(e). This comment seems to stem from the ruling
in Lane v. State, that the defendant may waive venue. 388 So. 2d
1022, 1026 (Fla. 1980). But placing upon the defendant an
affirmative obligation to request that the State be required to
prove venue at trial is inconsistent with identifying venue as an
“element,” since the State bears an affirmative duty to prove every
element of the offense at trial. See, e.g., Hill v. State, 980 So. 2d
1195, 1199 (Fla. 3d DCA 2008) (“It is well established that the
State has the burden of proving every element of a crime beyond a
reasonable doubt and this burden never shifts from the State.”
(citation omitted)). Again, it seems erroneous to identify venue as
an “element” of every criminal offense.

C

Identification of venue as an element leads to other practical
problems. First, the level of proof necessary to prove venue is
unclear. The court in Berry ruled that venue “need only be proven
by a preponderance of the evidence.” 306 So. 3d at 1259; see also
Monroe v. State, 14 So. 3d 1205, 1209 (Fla. 4th DCA 2009); Fla.
Std. Jury Instr. (Crim.) 3.8(e). For its part, the court in McClellion
described the level of proof necessary as whether the jury could
“reasonably infer from the evidence that the crime was committed
in the county in which the defendant was charged.” 858 So. 2d at
381. In fact, the court in McClellion went on to state that venue is
not an element of an offense specifically because it need not be
proven beyond a reasonable doubt. 858 So. 2d at 381 n.1.
Accordingly, it is unclear whether those courts that have ruled that
venue is an element would hold that venue must be proven beyond
a reasonable doubt.

But even if the State need not prove venue beyond a
reasonable doubt, how exactly is the jury supposed to decide
venue? Should the jury decide venue as a preliminary matter, only
proceeding to the substantive crime (with a different standard of
proof) once it decides that venue has been proved by a
preponderance of evidence? Should the jury be provided a verdict

21
form that directs it to distinguish between a venue finding and a
finding on the substantive crime? How do we know whether a jury
has found only that the State failed to prove venue? And most
importantly, if the jury finds that the State has failed to prove
venue, what is the remedy? The identification of the proper remedy
brings me to the final issue I see with the way that venue is proved
in a Florida prosecution.

D

In this case, Debose moved for judgment of acquittal on the
use of a communications device count based on his contention that
the State failed to present sufficient evidence that the crime
occurred in Alachua County. 2 Debose suggests that a finding of
lack of venue by the jury (employing, presumably, the
preponderance of evidence standard) would result in an acquittal.

This result is inconsistent with the purpose of an acquittal. An
acquittal has double jeopardy implications because the
constitutional prohibition against double jeopardy “protects
against a second prosecution for the same offense after acquittal.”
Carlson v. State, 405 So. 2d 173, 175 (Fla. 1981) (quoting North
Carolina v. Pearce, 395 U.S. 711, 717 (1969)). Conversely, it
appears that the correct remedy for failure to prove venue is
retrial. See, e.g., Smith, 599 U.S. at 253–54 (noting that reversal
of a conviction based on a violation of the Venue or Vicinage
Clauses, even when styled as a judgment of acquittal, does not
resolve the question of criminal culpability, and that as such
retrial is permissible). Even in Johnson, in which we ruled that
venue was an essential element of the crime and that the State
failed to prove it, we remanded the case for retrial. 177 So. 3d at
1009; see also Berry, 306 So. 3d at 1260 (remanding for retrial after
finding that the State failed to present evidence of venue).

2 Debose specifically requested a special instruction regarding

venue, but never requested the general jury instruction indicated
in the standard instructions. See Fla. Std. Jury. Instr. (Crim.)
3.8(e).

22
And yet, if the jury found that the State failed to prove proper
venue, presumably it would acquit the defendant.

In short, submitting the question of venue to the jury raises
several inconsistencies and errors. I submit that these
inconsistencies result from the failure of Florida courts to
recognize that the constitutional right to proper venue is simply a
procedural safeguard to protect the accused’s right to an impartial
jury where the crime occurred, not a part of the crime that the jury
itself must decide. To this end, I submit that a trial court should
decide whether venue is proper prior to trial, just like it does with
regard to other, related procedural rights.

II

It is firmly established in Florida law that a question of venue
must be submitted to the jury. All of the cases, even very old ones,
take this rule for granted rather than analyzing whether it is
appropriate. See, e.g., Hopkins v. State, 42 So. 52 (1906); McKinnie
v. State, 32 So. 786 (Fla. 1902); Warrace v. State, 8 So. 748 (Fla.
1891). Consider Croft v. State, 191 So. 34 (1939) as an example of
how the question has usually been addressed. In Croft, one of the
questions presented to the court was “[i]n a larceny prosecution is
it essential to a valid conviction that the state prove venue?” 191
So. at 34. The court’s entire analysis was that the question “must
be answered in the affirmative” and that “[i]nspection of the record
discloses that the State met the burden suggested by [the]
question.” Id. The court included no citations in its “analysis.”
Indeed, while the state constitution plainly specifies that a
defendant has a right to a trial by an impartial jury in the county
where the crime was committed, I can find no constitutional
provision, statute, rule, or case, that explains why the question of
venue must be presented to and decided by a jury. I conclude that
such a rule of law is incorrect.

Rather than belabor this position, I will simply point to People
v. Posey, 82 P.3d 755 (Cal. 2004), a case in which the Supreme
Court of California concluded that venue is a legal question for the
court, rather than a factual question for the jury:

The rule that venue is a question of fact for the jury is
unsound for a number of fundamental reasons. First, the

23
rule impedes the purposes underlying the venue
provisions, especially their principal purpose from a
defendant’s perspective of protecting a defendant from
being required to stand trial in a distant and unduly
burdensome locale, by putting off any finding on venue
until after the defendant has been required to undergo
the rigors and hardship of standing trial in an assertedly
improper locale, and after the state has incurred the time
and expense of conducting a trial there. Second, the rule
is inconsistent with contemporary treatment of other,
analogous issues, inasmuch as venue is a procedural
question involving the appropriateness of a place for a
defendant’s trial on a criminal charge, and not a
substantive question relating to the defendant’s guilt or
innocence of the crime charged. Third, the rule threatens
the untoward consequence of an “unwarranted acquittal”
when the jury returns a verdict of not guilty predicated
solely on lack of proper venue.

Id. at 759. (citations and quotations omitted). I agree.

The question, according to the Posey court,

turns on whether the issue presented relates to the
substantive matter of guilt or innocence to be determined
at trial or, instead, concerns a procedural matter that
does not itself determine guilt or innocence but either
precedes the trial (such as whether to change venue),
affects the conduct of the trial (such as whether to admit
certain evidence), or follows the trial (such as whether to
order a new trial).

Id. at 763 (citation omitted). “If an issue implicates guilt or
innocence as a substantive matter, it generally lies within the
province of the jury, but an issue involving a procedural matter
generally lies within the province of the court.” Id. Under this
standard, the Posey court concluded that venue was a question of
law for the court.

Similarly, under Florida law, note that the constitutional
provision providing a right to trial in the county where the crime
occurred also guarantees a “speedy and public trial.” Art. I, § 16(a),

24
Fla. Const. Questions involving the right to a speedy trial are
never decided by the jury; such an issue is always decided by the
court. See Landry v. State, 666 So. 2d 121, 125–26 (Fla. 1995)
(discussing a trial court’s duty to determine whether a speedy trial
violation has occurred). The same is true of a right to public trial.
See Bundy v. State, 455 So. 2d 330 (Fla. 1984). I see no compelling
reason why a different procedural right contained in the very same
constitutional clause should be a question for the jury.

One other inherent contradiction in making venue a jury
question was exposed by the Posey court. That is, if the State has
violated a defendant’s constitutional rights by trying him in the
wrong county, then a jury composed of citizens from the wrong
county is vested with the responsibility of deciding whether it is
the right jury to try the defendant. See Posey, 82 P.3d at 559. This
seems to violate the very notion of a constitutional right to trial by
a jury in the county where the crime occurred.

I believe the Posey court’s analysis is correct. Not only is venue
an appropriate question for the court rather than the jury, but the
significant issues identified above demonstrate serious problems
with allowing this issue to be decided by a jury. I believe this issue
is significant enough to certify questions of great public
importance to the Supreme Court of Florida. If the Court were to
find that venue is a proper question for the jury, I believe it should
clarify the jury’s responsibility on the question, as indicated above.
I propose the following questions.

SHOULD THE QUESTION OF WHETHER THE STATE HAS PROVEN
THAT VENUE WAS PROPER IN THE COUNTY WHERE TRIAL OCCURS BE
ANSWERED BY THE JURY? IF SO, SHOULD THE JURY BE INSTRUCTED
THAT IT SHOULD NOT CONSIDER WHETHER THE STATE HAS PROVEN
THE DEFENDANT’S GUILT IF IT FINDS THAT THE STATE HAS NOT
PROVEN PROPER VENUE?

25
_____________________________

Jessica J. Yeary, Public Defender, and Kathryn Lane, Assistant
Public Defender, Tallahassee, for Appellant.

Ashley Moody, Attorney General, and Robert “Charlie” Lee,
Assistant Attorney General, Tallahassee, for Appellee.

26

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10758067. Public record. Not legal advice.