Opinion
No. 2D22-1374.
02-24-2023
Richard HARLOW, Appellant, v. STATE of Florida, Appellee.
Richard Harlow, pro se. Ashley Moody , Attorney General, Tallahassee, and J. Wade Stidham , Assistant Attorney General, Tampa, for Appellee.
Richard Harlow, pro se.
Ashley Moody , Attorney General, Tallahassee, and J. Wade Stidham , Assistant Attorney General, Tampa, for Appellee.
SILBERMAN, Judge.
Richard Harlow appeals from the order denying his motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm.
On December 20, 2004, Mr. Harlow pleaded guilty to unlawful sexual activity with a minor, a second-degree felony. See § 794.05(1), Fla. Stat. (2003). The same day, the court sentenced him to ten years' imprisonment. On February 21, 2005, the court entered an order finding that Mr. Harlow was a sexual predator without making any specific factual findings. He did not file a direct appeal.
The subject matter of a rule 3.800(a) motion is limited to correcting illegal sentences that can be resolved on the face of the record without holding an evidentiary hearing. State v. Callaway, 658 So.2d 983, 988 (Fla. 1995), receded from on other grounds by Dixon v. State, 730 So.2d 265, 266 (Fla. 1999). In Saintelien v. State, 990 So.2d 494, 497 (Fla. 2008), the Florida Supreme Court held that a sexual predator designation could be challenged by a motion pursuant to rule 3.800(a). See also Fla. R. Crim. P. 3.800(a)(3) ("A defendant may seek correction of an allegedly erroneous sexual predator designation under this subdivision, but only when it is apparent from the face of the record that the defendant did not meet the criteria for designation as a sexual predator.").
In his motion, Mr. Harlow alleged that his sexual predator designation was illegal because he neither met the criteria of section 775.21(4), Florida Statutes (2003), the statute governing sexual predator designations applicable at the time Mr. Harlow committed the underlying offense, nor did he agree to a sexual predator designation as part of his plea agreement. Section 775.21(4) provided two alternative criteria an offender had to meet to be designated a sexual predator. The criteria applicable to Mr. Harlow required that the present offense was any felony violation or attempt thereof of chapter 794, excluding sections 794.011(10) and 794.0235, and the offender had previously been convicted of or pleaded to a violation of an enumerated offense. § 775.21(4)(a)1.b. Mr. Harlow's motion argued that he had not been convicted of an enumerated offense and that he did not agree to be sentenced as a sexual predator as part of his plea agreement. But Mr. Harlow's motion was facially insufficient because it failed to attach documents demonstrating his entitlement to relief or state where in the record such documents were located. See Patterson v. State, 197 So.3d 1220, 1222 (Fla. 2d DCA 2016) ("[T]he motion must affirmatively allege that the trial court records demonstrate on their face an entitlement to relief. A mere conclusory allegation that the answer lies in the record is insufficient to satisfy the pleading requirements of the rule. At a minimum, a rule 3.800 motion should state where in the record the information can be located and explain how the record demonstrates entitlement to relief." (alteration in original) (quoting Santiago v. State, 22 So.3d 789, 789-90 (Fla. 5th DCA 2009))).
As the State concedes, the trial court misconstrued Mr. Harlow's claim as arguing that his sexual predator designation should be removed because his offense is no longer enumerated as a primary offense. The court denied the motion, finding that the statutory amendment did not apply retroactively and that Mr. Harlow's offense was "unquestionably" an enumerated primary offense under the 2003 version of section 775.21(4)(a)1.b. Although the postconviction court misconstrued Mr. Harlow's motion and its rationale for denying the motion was erroneous, we must affirm because of the facial insufficiency of the motion. Our affirmance is without prejudice to Mr. Harlow's right to file a facially sufficient motion pursuant to rule 3.800(a).
Affirmed.
LaROSE and SLEET, JJ., Concur.