Opinion
No. 2D99-3700.
Opinion filed November 22, 2000.
Appeal from the Circuit Court for Manatee County; Janette Dunnigan, Judge.
Affirmed.
James Marion Moorman, Public Defender, and Brad Permar, Assistant Public Defender, Bartow, for Appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Ann Pfeiffer Howe, Assistant Attorney General, Tampa, for Appellee.
Steven A. Spear appeals the trial court's order denying his motion to withdraw his plea. Although we affirm on all four issues raised by Spear, we issue this opinion to address two of Spear's arguments.
First, Spear argues that he should be allowed to withdraw his plea because the trial court did not find the motion to suppress dispositive in violation of his plea agreement. Although the transcript of the plea hearing reflects confusion regarding the trial court's finding on this issue, we conclude that the motion to suppress was dispositive. Therefore, Spear's argument is moot.
Spear's second argument is that he should be allowed to withdraw his plea because he was not informed that his eligibility for parole could be nullified by the Jimmy Ryce Act. In this case, Spear pleaded no contest to two counts of sexual battery of a child under the age of twelve by a person over eighteen years of age; two counts of handling or fondling a child less than sixteen years of age in a lewd, lascivious, or indecent manner; and rape and forcible carnal knowledge of a child under the age of eleven by a person seventeen years of age or older. During the plea colloquy, the court did not inform Spear that, because he was pleading to sexually violent offenses, he could be subject to involuntary commitment following his release from prison under the Jimmy Ryce Act. Spear challenges the trial court's omission in this regard for the first time on appeal of the denial of his motion to withdraw his plea.
See § 394.912(9), Fla. Stat. (1999).
Sections 394.910 to 394.931, Florida Statutes (1999), the Jimmy Ryce Act, provide for the civil commitment of sexually violent predators upon their release from prison. Spear would qualify as a sexually violent predator under section 394.912(10) if it was proven that he "[s]uffers from a mental abnormality or personality disorder that makes [him] likely to engage in acts of sexual violence if not confined in a secure facility for long-term control, care, and treatment" because Spear has been convicted of a qualifying sexually violent offense.
While generally a trial court is only required to inform a defendant who pleads guilty or no contest of the direct consequences of his plea,see State v. Fox, 659 So.2d 1324, 1327 (Fla. 3d DCA 1995), there are certain collateral consequences that must be revealed by law. See, e.g., § 775.21(5)(a)2., Fla. Stat. (1999) (requiring the court to notify defendants classified as sexual predators of the registration and notification requirements of the Sexual Predator Act); Fla. R. Crim. P. 3.172(c)(8) (requiring the court to inform defendants that they could be subject to deportation as a consequence of a plea); State v. Wilson, 658 So.2d 521, 523 (Fla. 1995) (holding that courts are required to inform defendants who plead guilty or no contest and qualify for habitualization of the reasonable consequences of the habitualization). While the Jimmy Ryce Act is a collateral consequence of a plea, the trial court is required to inform defendants who are classified as sexual predators that the Act may apply if the Act was in effect on the date of the plea. See State v. Stapleton, 764 So.2d 886, 887 (Fla. 4th DCA 2000); Pearman v. State, 764 So.2d 739, 741 (Fla. 4th DCA 2000).
The Jimmy Ryce Act was effective January 1, 1999, see Pearman, 764 So.2d at 740, and the trial court sentenced Spear on June 14, 1999. Therefore, we conclude that the trial court was required to inform Spear that he could be subject to the Jimmy Ryce Act in this case. However, defendants are required to raise a trial court's error to inform them of a collateral consequence in a motion to withdraw plea in order to preserve the error for appeal. See Oce v. State, 742 So.2d 464, 465 (Fla. 3d DCA 1999) (affirming the trial court's denial of a motion to withdraw plea based on the argument that the defendant was not made aware that he would be subject to sexual predator notification and registration requirements because the defendant failed to file an objection with the trial court); J.R.V. v. State, 715 So.2d 1135, 1138 (Fla. 5th DCA 1998) (holding that a defendant failed to preserve for review whether he was denied the right to counsel when he entered his plea because he did not raise that issue in his motion to withdraw his plea); Rhodes v. State, 704 So.2d 1080, 1082 (Fla. 1st DCA 1997) (declining to address the merits of the defendant's argument that he was not advised of the consequences of habitualization when he did not preserve that argument in a motion to withdraw his plea), approved, State v. Thompson, 735 So.2d 482 (Fla. 1999). Because Spear did not challenge the trial court's failure to inform him that he could be subject to the Jimmy Ryce Act in his motion to withdraw his plea, he has not preserved this issue for appeal.
We decline to address whether a defendant can preserve this argument by filing a motion for postconviction relief in the absence of a motion to withdraw plea.
Patterson, C.J., and Blue, J., Concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.