EFTA00797972.pdf

LexisNexis. User Name: Matthew Goldberger Date and Time: Thursday, November 15, 2018 7:42:00 PM EST Job Number: 77721842 Document (1) 1. Andrews v. State. 82 So. 3d 979 Client/Matter: -None- LexisNexis' I About LexisNexis I Privacy Policy I Terms & Conditions I Coovriaht O 201$ LexisNexis Matthew Goldberger EFTA00797972  Positive As of: November 16, 2018 12:42 AM Z Andrews v. State Court of Appeal of Florida. First District August 15, 2011, Opinion Filed CASE NO. 1D10-0525 Reporter 82 So. 3d 979'; 2011 Fla. App. LEXIS 12729 ": 36 Fla. L. Weekly D 1792 registration statute, in violation of § 943.0435(14), Fla. MEGALETO ANDREWS, Appellant, v. STATE OF Stat. (2007). The trial court imposed an enhanced FLORIDA, Appellee. sentence as a habitual violent felony offender (HVFO) to Subsequent History: As Amended September 12, twenty years' incarceration. Defendant appealed. 2011. Overview Released for Publication August 31, 2011. Defendant argued that the evidence was insufficient to Review denied by Andrews v. State. 92 So. 3d 212, exclude his reasonable hypothesis of innocence, that he 2012 Fla. LEXIS 1108 (Fla.. June 1. 2012) visited the apartment complex often to see his girlfriend but did not live there. The appellate court found, Post-conviction relief denied at Andrews v. State. 96 So. 3d 883. 2012 Fla. App. LEXIS 12593 (Fla. Dist. CL App. however, that this was not a case based solely on circumstantial evidence. There was direct evidence that 1st Dist. Aug. 2, 2012) defendant lived at the complex, namely, the testimony Writ of habeas corpus denied. Certificate of by witnesses who lived at the complex that defendant appealability denied, Dismissed by Andrews v. Secy. told them that he lived there. This direct evidence was Fla. Dept of Corr.. 2018 U.S. Dist. LEXIS 190520 (M.D. buttressed by circumstantial evidence. References to Fla.. Nov. 7. 2018) his attempt to ask a neighbor out were not irrelevant because the evidence tended to show that defendant Prior History: ["1] An appeal from the Circuit Court for lived at the complex. Even if admitting that testimony Duval County. David M. Gooding, Judge. was error, any error was undoubtedly harmless. Given defendant's HVFO status, the gravity of his triggering Andrews v. State. 43 So. 3d 799. 2010 Fla. App. LEXIS crime of failure to report a temporary residence was 12160 (Fla. Dist. Ct. App. 1st Dist, Aug. 18. 2010) increased, and thus his sentence was not grossly disproportionate. All of defendant's prior convictions were violent crimes, including two counts of sexual Core Terms battery, armed kidnapping, armed robbery, and armed burglary. The consecutive ten-year sentences did not sentence, sex offender, cruel and unusual punishment, constitute cruel and unusual punishment. apartment complex, temporary residence, offender, felony, trial court, convictions, prison, witnesses, Outcome harmless, lived, failure to report. non-violent, reside, The judgment was affirmed. appellate court, incarceration, requirements. Statutes, violent, fail to register, career criminal, girlfriend, apartment, temporary, asserts, truck LexisNexis® Headnotes Case Summary Procedural Posture Criminal Law & Procedure > Postconviction A jury in the Circuit Court for Duval County (Florida) Proceedings > Sex Offenders > Registration convicted defendant of failure to report a temporary residence in violation of Florida's sexual offender HA/$1.1 Sex Offenders, Registration Matthew Goldberger EFTA00797973  Page 2 of 9 82 So. 3d 979, *979; 2011 Fla. App. LEXIS 12729, "1 A registered sex offender is required to register any HN*.ti Types of Evidence, Circumstantial residences with the local sheriff's office on his birthday Evidence and every third month thereafter. § 943.0435(14)(a)-(c), Fla. Stat. (2007). A defendant's admission is direct evidence. Criminal Law & Procedure > Postconviction Criminal Law & Proceedings > Sex Offenders > Registration Procedure > > Reviewability > Preservation for Review > Failure to Object HN2[S] Sex Offenders, Registration Evidence > Relevance > Exclusion of Relevant See § 775.21(2)(g), Fla. Stat. (2007). Evidence > Confusion. Prejudice & Waste of Time HN6(st] Preservation for Review, Failure to Object Criminal Law & Procedure > > Standards of An undue prejudice issue pursuant to § 90.403. Fla. Review > De Novo Review > General Overview Stat. (2008) is not preserved when defense counsel objects only on relevance grounds and not on undue Criminal Law & Procedure > Trials > Motions for prejudice grounds. Acquittal HN3[;.61 Standards of Review, De Novo Review Criminal Law & Procedure > > Standards of A trial court's denial of a motion for judgment of acquittal Review > Harmless & Invited Error > General is reviewed de novo. Overview Evidence > Burdens of Proof > Allocation Criminal Law & Procedure > Trials > Burdens of HN70.1 Standards of Review, Harmless & Invited Proof > Prosecution Error Evidence > Types of Evidence > Circumstantial The harmless error test places the burden on the State, Evidence as the beneficiary of the error, to prove beyond a reasonable doubt that the error complained of did not Criminal Law & Procedure > > Standards of contribute to the verdict or, alternatively stated, that Review > Substantial Evidence > Sufficiency of there is no reasonable possibility that the error Evidence contributed to the conviction. Application of the test requires examination of the permissible evidence on HN4. 1.1 Burdens of Proof, Prosecution which the jury could have legitimately relied, and in When a case is based entirely on circumstantial addition an even closer examination of the evidence, a special standard of review applies which impermissible evidence which might have possibly requires that the circumstantial evidence be inconsistent influenced the jury verdict. with any reasonable hypothesis of innocence. The State is not required to rebut conclusively every possible variation of events which could be inferred from the Criminal Law & Procedure > > Standards of evidence, but only to introduce competent evidence Review > Harmless & Invited Error > General which is inconsistent with the defendant's theory of Overview events. Evidence > Burdens of Proof > Allocation HN8A] Standards of Review, Harmless & Invited Evidence > Types of Evidence > Circumstantial Error Evidence Matthew Goldberger EFTA00797974  Page 3 of 9 82 So. 3d 979, '979; 2011 Fla. App. LEXIS 12729, "1 The harmless error test must be conscientiously applied Criminal Law & Procedure > Sentencing > Cruel & and the reasoning of the court set forth for the guidance Unusual Punishment of all concerned and for the benefit of further appellate review. The test is not a sufficiency-of-the-evidence, a HMO* Fundamental Rights, Cruel & Unusual correct result, a not clearly wrong, a substantial Punishment evidence, a more probable than not, a clear and convincing, or even an overwhelming evidence test. The Eighth Amendment to the United States Harmless error is not a device for the appellate court to Constitution has historically provided protection relative substitute itself for the trier-of-fact by simply weighing to the mode and method of punishment, not the length the evidence. The focus is on the effect of the error on of incarceration. Florida courts have been reluctant to the trier-of-fact. The question is whether there is a declare a prison sentence unconstitutional because of reasonable possibility that the error affected the verdict. its length. The Supreme Court of Florida has held that in The burden to show the error was harmless must order for a prison sentence to constitute cruel and remain on the State. If the appellate court cannot say unusual punishment solely because of its length, the beyond a reasonable doubt that the error did not affect sentence must be grossly disproportionate to the crime. the verdict, then the error is by definition harmful. Constitutional Law > Bill of Rights > Fundamental Constitutional Law > Bill of Rights > Fundamental Rights > Cruel & Unusual Punishment Rights > Cruel & Unusual Punishment Criminal Law & Procedure > Sentencing > Cruel & Criminal Law & Procedure > Sentencing > Cruel & Unusual Punishment Unusual Punishment HNHA) Fundamental Rights, Cruel & Unusual Constitutional Law > > Case or Punishment Controversy > Constitutional Questions > General Overview A cruel and unusual punishment analysis consists of an examination of three objective factors. First, a court Criminal Law & Procedure > > Standards of must consider the gravity of the offense and the Review > De Novo Review > General Overview harshness of the penalty. Second, a court may examine the sentences imposed on other criminals in the same Criminal Law & Procedure > > Standards of jurisdiction. Third, a court may examine the sentences Review > Deferential Review > General Overview imposed for commission of the same crime in other jurisdictions. HNgfil Fundamental Rights, Cruel & Unusual Punishment Criminal Law & Mixed questions of law and fact that ultimately Procedure > Sentencing > Imposition of determine constitutional rights should be reviewed by Sentence > Factors appellate courts using a two-step approach, deferring to the trial court on questions of historical fact but Criminal Law & Procedure > Sentencing > Ranges conducting a de novo review of the constitutional issue. However, when considering Eighth Amendment issues, Htslta) Imposition of Sentence, Factors appellate courts must yield substantial deference to the broad authority that legislatures necessarily possess in The legislature may punish a habitual violent felony determining the types and limits of punishment for offender more severely than it punishes a first time crimes, as well as to the discretion that trial courts offender. § 775.084. Fla. Stat. (2008). possess in sentencing convicted criminals. Constitutional Law > Bill of Rights > Fundamental Constitutional Law > Bill of Rights > Fundamental Rights > Cruel & Unusual Punishment Rights > Cruel & Unusual Punishment Matthew Goldberger EFTA00797975  Page 4 of 9 82 So. 3d 979, *979; 2011 Fla. App. LEXIS 12729, "1 Criminal Law & Procedure > Sentencing > Cruel & Appellant is a registered sex offender. ("2] HN/[7/7] As Unusual Punishment such, appellant is required to register any residences with the local sheriff's office on his birthday and every Criminal Law & third month thereafter. See § 943.0435(14)(a)-(c), Fla. Procedure > > Appeals > Standards of Stat. (2007). Appellant was arrested and charged with Review > General Overview two counts of failure to report a temporary residence,I Criminal Law & Procedure > Appeals > Standards of in violation of section 943.0435(14), Florida Statutes Review > General Overview (2007). The alleged temporary residence was an apartment leased by appellant's pregnant girlfriend. The HN/30.1 Fundamental Rights, Cruel & Unusual State alleged appellant failed to report this temporary Punishment address on July 25, 2008, and again on October 28, 2008. Before trial. the State filed its Notice of Intent to It is not the role of an appellate court to substitute its Classify Defendant as a HVFO pursuant to section judgment for that of the sentencing court as to the 775.084. Florida Statutes (2007). appropriateness of a particular offense: rather, in applying the Eighth Amendment, the appellate court At trial, numerous ["3] witnesses testified that around decides only whether the sentence under review is the relevant dates, they regularly saw appellant at his within constitutional limits. girlfriend's apartment complex. Two witnesses testified appellant told them directly that he lived in the Counsel: Nancy A. Daniels, Public Defender, and apartment complex. Witnesses also testified that Pamela D. Presnell, Assistant Public Defender, appellant interacted with them, engaged them in small Tallahassee, for Appellant. talk and invited them to various social engagements at Pamela Jo Bondi, Attorney General, and Joshua R. "his apartment." Also, witnesses testified they regularly Heller, Assistant Attorney General, Tallahassee, for saw appellants truck in the apartment complex parking Appellee. lot, both during the day and late at night, and saw appellant coming and going from one of the apartments. Judges: WOLF. J. DAVIS and MARSTILLER. JJ., Appellant testified prior to his arrest, he was living with CONCUR. his mother at the address he provided on his sexual offender registration forms. He testified that he visited Opinion by: WOLF the apartment complex regularly to help ['9&2] take care of his pregnant girlfriend, but did not live there and Opinion never spent the night. He testified that he would often leave his truck in the apartment complex parking lot and take his girlfriend's car to work and to run errands ['98t] WOLF, J. because her car got better gas mileage than his truck. He testified when his job required him to go out of state, Appellant challenges his two convictions for failure to he would leave his truck in the apartment complex report a temporary residence in violation of Florida's parking lot. sexual offender registration statute and his subsequent enhanced sentence as a habitual violent felony offender (HVFO) to twenty years' incarceration. Appellant raises "Temporary residence" is defined as: four is-sues on appeal. Specifically, appellant asserts (I) the trial court erred in denying his motion for judgment HN2[1] Temporary residence means a place where the person abides. lodges, or resides for a period of 5 or of acquittal: (II) the trial court erred in admitting certain more days in the aggregate during any calendar year and testimony as relevant; (Ill) his convictions for two which is not the person's permanent residence or. for a failures to properly report as a sexual offender person whose permanent residence is not in this state, a constituted a double jeopardy violation; and (IV) his place where the person is employed, practices a sentence constituted cruel and unusual punishment in vocation, or is enrolled a student for any period of time in violation of the Eighth Amendment to the U.S. this state. Constitution and article I. section 17 of the Florida Constitution. We affirm as to all issues. § 775.21(2)(g). Fla. Stat. (2007). See also § 943.0435(1)(c). Fla. Stat. Matthew Goldberger EFTA00797976  Page 5 of 9 82 So. 3d 979, '982; 2011 Fla. App. LEXIS 12729, "3 After both the ["4] close of the State's case and his transpired: own testimony, appellant moved for a judgment of A. Yes. Yes, he came to my door. Knocked on my acquittal. The trial court denied the motion. The jury door and I opened it and he asked me how I was found appellant guilty on both counts as charged. doing and asked me if the guy that helped me - if Appellant was sentenced as a HVFO to two, ten-year one of the guys that helped me move in was my consecutive terms, for a total of twenty years' boyfriend and I said, yes. incarceration. Q. Was it? A. No. First, appellant asserts the trial court erred in denying O. Okay. his motion for judgment of acquittal. Specifically, appellant contends the State's evidence was insufficient A. And he told me how beautiful I was and if l ever to exclude his reasonable hypothesis of innocence, that wanted to go out one time - 2 he visited the apartment complex often to see his pregnant girlfriend but did not reside there. ['983] [DEFENSE]: Objection. A. - and I just let him know - HN.3[111 A trial court's denial of a motion for judgment of [DEFENSE): -- Your Honor, relevancy. acquittal is reviewed de novo. Reynolds v. State. 934 THE COURT: I'll overrule it, but you need to reign So. 2d 1128. 1145 (Fla. 2006). HN4[t] When a case is [sic]it in. based entirely on circumstantial evidence, a special Q. So he just asked you out? Was that the extent of standard of review applies which requires that the the conversation? circumstantial evidence be inconsistent with any A. Yeah, pretty much. He just asked me out. I kind reasonable hypothesis of innocence. State v. Law. 559 of cut it short and that was it. So. 2d 187, 188 (Fla. 1989). "The state is not required to (Emphasis added). Appellant contends that references 'rebut conclusively every possible variation' of events to his attempt to ask Emerson out were irrelevant. We which could be inferred from the evidence, but only to disagree because the evidence tended to show that introduce competent evidence which is inconsistent with appellant lived at the apartment complex. Specifically, ["5] the defendant's theory of events." Darling v. State. the fact that appellant had the ability to find out where 808 So. 2d 145. 156 (Fla. 2002) (citation omitted). Emerson lived and had an opinion on her physical beauty made it more likely that appellant lived at the Despite appellant's contention to the contrary, this was apartment complex because access to the complex was not a case based solely on circumstantial evidence. secured and resident keys were necessary for entry. There was direct evidence that appellant lived at the apartment complex, namely, the testimony by witnesses Furthermore, even if admitting the above portion of who lived at the apartment complex that appellant told Emerson's testimony was error, any error was them directly that he lived there. See Sylvis v. State, undoubtedly harmless. The standard for harmless error 916 So. 2d 915, 918 (Fla. 5th DCA 2005) (stating that analysis was set forth in State v. DiGuilio. 491 So. 2d HN5011 a defendant's admission is direct evidence). 1129 LFla. 1986): This direct evidence was buttressed by circumstantial evidence that appellant and his truck were seen HN7[t] The harmless error test . . . places the regularly around the apartment complex by numerous burden on the state, as the beneficiary of the error, apartment residents. Thus, we find the trial court did not to prove beyond a reasonable doubt that the error err in denying appellant's motion for judgment of acquittal. 2 4- pellant failed to object at trial on ("7] undue prejudice Second, appellant asserts the trial court admitted the grounds pursuant to section 90.403, Florida Statutes (2008). irrelevant testimony of three witnesses contrary to As a result, he waived any possible undue prejudice argument section 90.401. Florida Statutes (2008). We find the on appeal. See Mitchell v State, 734 So. 2d 450, 452 (Fla. 4th testimony of two of these witnesses to be clearly DCA 1999) (finding HN6111 undue prejudice issue not relevant and, as such, we will not address their preserved when defense counsel objected only on relevance testimony. However, the testimony of the third witness, grounds and not on undue prejudice grounds); see also Amanda Emerson, requires further discussion. When Steinhorst v. State. 412 So. 2d 332. 338 (Fla. 1982) (stating Emerson was asked whether appellant ["6] had ever in order for an argument to be cognizable on appeal. it must come to her apartment, the following discussion be the specific contention asserted as legal ground for the objection. exception. or motion below.') (emphasis added). Matthew Goldberger EFTA00797977  Page 6 of 9 82 So. 3d 979, *983; 2011 Fla. App. LEXIS 12729, */ complained of did not contribute to the verdict or, failures to report a temporary residence constituted a alternatively stated, that there is no reasonable double jeopardy violation. In light of our recent decision possibility that the error contributed to the in Bostic v. State, 60 So. 3d 535 (Fla. 1st DCA 2011), conviction. Application of the test requires . . . we find this assertion to be without merit. examination of the permissible rein evidence on which the jury could have legitimately relied, and in Last, ['•10] appellant asserts that his sentence of two addition an even closer examination of the consecutive ten-year terms for failure to report a impermissible evidence which might have possibly temporary residence constituted cruel and unusual influenced the jury verdict. punishment in violation of the Eighth Amendment to the U.S. Constitution and article 1. section 17 of the Florida Constitution. HNal "[Mixed questions of law and fact HIV i[T] The test must be conscientiously applied that ultimately determine constitutional rights should be and the reasoning of the court set forth for the reviewed by appellate courts using a two-step approach, guidance of all concerned and for the benefit of deferring to the trial court on questions of historical fact further appellate review. The test is not a but conducting a de novo review of the constitutional sufficiency-of-the-evidence, a correct result, a not issue? Hilton v. State. 961 So. 2d 284. 293 (Fla. 20071 clearly wrong, a substantial evidence, a more (citation omitted). However, when considering Eighth probable than not, a clear and convincing, or even Amendment issues,3 an overwhelming evidence test. Harmless error is not a device for the appellate court to substitute appellate courts must yield "substantial deference to itself for the trier-of-fact by simply weighing the the broad authority that legislatures necessarily possess evidence. The focus is on the effect of the en-or on in determining the types and limits of punishment for the trier-of-fact The question is whether there is a crimes, as well as to the discretion that trial courts reasonable possibility that the error affected the possess in sentencing convicted criminals." Salem v. verdict The burden to show the error was harmless Helm. 463 U.S. 277. 290. 103 S. Ct. 3001. 77 L. Ed. 2d must remain on the state. If the appellate court 637 (19831. cannot say beyond a reasonable doubt that the error did not affect the verdict, then the error is by HN161f1 "The Eighth Amendment to the United States definition harmful. Constitution . . . [has] historically provided protection relative to the mode and method of punishment, not the Id. at 1138-39 (citations omitted) (emphasis added). Any length of incarceration? Hall v. State, 823 So. 2d 757,. alleged error here was harmless for several reasons. 760 (Fla. 2002)• see also Harmelin v. Michigan. 501 First, there was testimony by two rim witnesses that U.S. 957. 979. 111 S. Ct. 2680. 115 L. Ed. 2d 836 appellant told them that he lived at the apartment (1991). Florida courts have been reluctant to declare a complex. Second, given the nature of the charges prison sentence unconstitutional because of its length. against appellant, the jury was already aware that he Adaway. 902 So. 2d at 748. The Florida Supreme Court was a convicted sex offender. Third, this statement was has held that in order for a prison sentence to constitute extremely brief. See generally Eacilin v. State, 19 So. 3d cruel and unusual punishment solely because of its 935. 947 (Fla. 20091 (stating that a brief statement length, the sentence must be grossly disproportionate to about defendant's lack of remorse constituted harmless the crime. Adaway, 902 So. 2d at 750. error). Fourth, appellant did not p984] object to a similar statement by another witness, Marcella Watson HN11[T] A cruel and unusual punishment analysis and thus the jury was previously informed of appellant's consists of an examination of three objective factors. attempts to ask out a female resident. As such, Solem. 463 U.S. at 292. First, a court must consider the Emerson's testimony was cumulative. See State v. "gravity of the offense and the harshness of the SchooD. 653 So. 2d 1016. 1019 (Fla. 19951 (approving penalty." Id. Second, a court may examine "the cumulative evidence as a factor weighing in favor of harmless error). Therefore, even if it were error to admit the above portion of Emerson's testimony, we find there 3 The Florida Supreme Court has declined to address if the was not a reasonable possibility that it affected the scope of the Eighth Amendment to the U.S. Constitution verdict. differs from that of article I. section 17 of the Florida Constitution. See Adawav v. State. 902 So. 2d 746. 752 (Fla. Third, appellant asserts that his convictions for two 20051. rili Thus, we treat the two as commensurate in scope. Matthew Goldberger EFTA00797978  Page 7 of 9 82 So. 3d 979, '984; 2011 Fla. App. LEXIS 12729, "11 sentences imposed on other criminals in the same crimes are of the type that require the State to know the jurisdiction." Id. Third, a court may examine "the location of the offender even atter the offender is sentences imposed for commission of the same crime in released from jail). Thus, due to the risk that sexual other jurisdictions." Id. For the following reasons, we find offenders pose to the public even atter released from that appellant's sentence was not cruel and prison, appellant's failure to properly register was a non- ["12] unusual. trivial offense. 1. Gravity of the Offense/Harshness of the Penalty b. HVFO Status / Underlying Offenses Appellant is also a HVFO, and as such HN12[t] the a. The Triggering Offense Legislature may punish appellant more severely than it punishes a first time offender. ["14] See ¢ 775.084 With the factors of Solem in mind, we begin our Fla. Stat. (2008); see also Ewing v. California, 538 U.S. assessment of the gravity of appellant's crime, failure to 11. 24-26. 123 S. Ct. 1179. 155 L. Ed. 2d 108 (2003). report a temporary r9851 residence in violation of The express legislative intent of Florida's HVFO statute section 943.0435(14). The express legislative intent of is set forth in section 775.0841, Florida Statutes (2008), Florida's sexual offender reporting requirements is set which provides: forth in chapter 2000-207, section 2, Laws of Florida, which provides: The Legislature finds a substantial and disproportionate number of serious crimes are Legislative findings.—The Legislature finds that committed in Florida by a relatively small number of sexual offenders . . often pose a high risk of repeat and violent felony offenders, commonly engaging in sexual offenses, even after being known as career criminals. The Legislature further released from incarceration or commitment, and finds that priority should be given to the that protection of the public from sexual offenders is investigation, apprehension, and prosecution of a paramount government interest. . . . Releasing career criminals in the use of law enforcement information concerning sexual offenders to law resources and to the incarceration of career enforcement agencies and to persons who request criminals in the use of available prison space. The such information, and the release of such Legislature intends to initiate and support increased information to the public by a law enforcement efforts by state and local law enforcement agencies agency or public agency, will further the and state attorneys' offices to investigate, governmental interests of public safety. The apprehend, and prosecute career criminals and to designation of a person as a sexual offender is not incarcerate them for extended terms: and, in the a sentence or a punishment, but is simply the case of violent career criminals, such extended status of the offender which is the result of a terms must include substantial mandatory minimum conviction for having committed certain crimes. terms of imprisonment. (Emphasis added). Although ["13] appellant's (Emphasis added). In enacting the HVFO statute, the triggering offense was failing to report a temporary legislature recognized that those who commit serious address (which is a non-violent crime), the legislative crimes often repeat those crimes. ["15] By mandating intent indicates that this reporting requirement is not a increased penalties, the HVFO statute seeks both to mere technicality. Rather, Florida has a real and protect the public from these violent [6986] offenders legitimate interest in knowing where a sexual offender is and presumably attempts to deter future offenders. residing, even if the residence is only temporary, Given appellant's HVFO status, the gravity of his because of the real risk that sexual offenders pose to triggering crime of failure to report a temporary the public and the need for law enforcement officials to residence was increased, and thus his sentence was monitor them. The temporary reporting requirement is not grossly disproportionate. See Nelson v. State, 811 important because it prevents sexual offenders from So. 2d 761. 763 (Fla. 4th DCA 2002) (finding circumventing the statute by providing law enforcement "10/20/Life" enhancement statute was not, on its face, with one address while they actually reside at another. cruel and unusual): see also Hale v. State, 630 So. 2d Cf. State v. Wardell. 2005 MT 252. 329 Mont. 9. 122 521. 526 (Fla. 1993) (reiterating the principle that P.3d 443 (Mont 2005) (stating that sexual offense sentence length is a matter of legislative prerogative): Matthew Goldberger EFTA00797979  Page 8 of 9 82 So. 3d 979, *986; 2011 Fla. App. LEXIS 12729, "15 Vucinich v. State. 776 So. 2d 995. 996 (Fla. 5th DCA appellants prior convictions were violent crimes, 20011 (finding a ten-year sentence for habitual felony including two counts of sexual battery, armed offender driving did not constitute cruel and unusual kidnapping, armed robbery, and armed burglary. In punishment). Long v. State, the Fifth District reiterated this distinction mentioned in Bloodworth, stating, 'Solem applie[s] only to non-violent felonies." 558 So. 2d 1091. 1092 (Fla. 5th 2. Intrajurisdictional Comparison DCA 19901. Although the triggering crime in the instant case was non-violent and did not involve harm to any After a thorough search, we can find no Florida case law particular individual, appellant does not point to any exactly on point. While there are numerous cases authority suggesting the particular facts of his case involving a defendant failing to comply with the sexual mandate a finding of cruel and unusual punishment, nor offender registration requirements, we can find no does appellant contend that his sentence fell outside of Florida case upholding or reversing a sentence of the statutory guidelines. Thus, Solem does not apply to twenty years for failure to register a temporary address the instant case. where the defendant is a HVFO. However, ["•16] we have stated in dicta that Solem does not apply in cases involving prior violent felonies. See Bloodworth v. State 3. runIntedurisdictional Comparison 504 So. 2d 495, 498 (Fla. 1st DCA 1987). Other jurisdictions are split on whether long (i.e., twenty- Appellant relies on Solem. 463 U.S. 277. 103 S. Ct. year) sentences enhanced [187] by habitual felony 3001. 77 L. Ed. 2d 637 for the proposition that his offender statutes for failure to comply with sexual twenty-year sentence constituted cruel and unusual offender registration requirements constitute cruel and punishment.4 unusual punishment. See People v. Nichols. 176 Cal. App. 4th 428, 97 Cal. Rptr. 3d 702, 706 (Cal. Ct. App. In Solem, the defendant was sentenced to life 2009) (holding a sentence of twenty-five years to life in imprisonment without parole for writing a "no account" prison did not constitute cruel and unusual punishment check for $100 under a South Dakota recidivism statute. where a defendant failed to register as a sexual offender Id. He had previously been convicted of six nonviolent when he moved out of town and was in violation of a felonies, including convictions for third-degree burglary, "three strikes law"); State v. Wardell. 2005 MT 252. 329 obtaining money under false pretenses, grand larceny, Mont 9, 122 P.3d 443 (Mont 20051(holding a sentence and a third-offense driving while intoxicated. Id. at 279- of twenty-five years with twenty years suspended did 80. The U.S. Supreme Court reversed, stating the not constitute cruel and unusual punishment); defendant's] crime was one of the most passive felonies Thompson v. State, No. 2-02-318-CR, 2003 Tex. App. a person could commit. It involved neither violence nor LEXIS 10438 (Tex. App. Dec. 11. 2003) (holding that a threat of violence to any person." Id. at 296 (citation sentence of sixty years in prison did not constitute cruel omitted). Additionally, "[All [of the defendant's prior and unusual punishment where defendant failed to crimes] were nonviolent and none was a crime against a register as a sexual offender and was a habitual felony person." Id. at 297. offender) State v. Mueller. 53 So. 3d 677 (La. Ct. App. 20101; (holding that a sentence of ten years in prison did Appellant contends that because his crime of not not constitute excessive punishment in violation of reporting his temporary residence was passive and Louisiana Constitution). But see People v. Carmony nonviolent and his sentence was excessively long, 127 Cal. App. 4th 1066, 26 Cal. Rptr. 3d 365, 369 (Cal. Solem should apply. However, as noted above, in Ct App. 2005) [*19] (holding a sentence of twenty-five Bloodworth this court stated that the all-important factor years to life in prison constituted cruel and unusual that made the sentence cruel and unusual in So/em was punishment where a defendant failed to register as a that all of the defendant's prior convictions were non- sexual offender and was in violation of a "three strikes violent. 504 So. 2d at 498. In the instant case, all of law"); Bradshaw v. State. 284 Ga. 675. 671 S.E.2d 485 (Ga. 2008) (holding that a mandatory sentence of life imprisonment constituted cruel and unusual punishment 4 To date, Solem is the first and only case in which the U.S. where a defendant failed to register as a sex offender Supreme Court held a prison sentence violated the Eighth for the second time and the offense that caused the Amendment to the U.S. Constitution rin based solely on reporting requirement was statutory rape). Thus, the its length. practices of other jurisdictions provide little guidance on Matthew Goldberger EFTA00797980  Page 9 of 9 82 So. 3d 979, '987; 2011 Fla. App. LEXIS 12729, "19 this issue. Taking all of the above analysis into account, appellant's sentence did not constitute cruel and unusual punishment. As the U.S. Supreme Court recognized in Rummel v. Estelle. 445 U.S. 263. 284. 100 S. Ct. 1133. 63 L. Ed. 2d 382 (1980), where a defendant was convicted of multiple prior felonies. "[the State] was entitled to place upon [a defendant] the onus of one who is simply unable to bring his conduct within the social norms prescribed by the criminal law of the State." The HVFO statute in Florida is "nothing more than a societal decision that when a person commits yet another felony, he should be subjected to [ ] serious penalty." Id. at 278. ["20] Further, HN13[1] "it is not the role of an appellate court to substitute its judgment for that of the sentencing court as to the appropriateness of a particular offense; rather, in applying the Eighth Amendment, the appellate court decides only whether the sentence under review is within constitutional limits." Solem, 463 U.S. at 290 n.16. Thus, we find that appellant's consecutive ten-year sentences for failure to report a temporary residence do not constitute cruel and unusual punishment. For the foregoing reasons, the trial court did not commit reversible error. Accordingly, the judgment of the trial court is AFFIRMED. DAVIS and MARSTILLER. JJ., CONCUR. End of Document Matthew Goldberger EFTA00797981