The Court first finds that Section 943.0435, Florida Statutes, “contains no provision for a court order designating such offenders as sexual offenders; they attain that status merely by virtue of their convictions.” See Harvey v. State, 17 So.3d 890 (Fla. 4th DCA 2009). Pursuant to Section 943.0435, a sexual offender is someone who has been convicted of any certain criminal offenses specified in the statute, among which are convictions of Sections 827.071 and 810.145(8).
The defendant contends that had the legislature meant convicted in another state for an offense similar to one of the enumerated Florida offenses it would have said so, pointing to the fact that in subsection (1)(a)1.a., the legislature did just that. The State insists we have already decided this issue adversely to the defendant, relying upon Harvey v. State, 17 So.3d 890 (Fla. 4th DCA 2009). Harvey, though, stands only for the proposition that, in Florida, there is a distinction to be made between a “sexual predator” and a “sexual offender.” While section 775.21, Florida Statutes, expressly requires the Florida courts to make a written finding that the defendant is a “sexual predator,” section 943.0435 “contains no provision for a court order designating such offenders as sexual offenders,” rather “they attain that status merely by virtue of their convictions.
The defendant contends that had the legislature meant convicted in another state for an offense similar to one of the enumerated Florida offenses it would have said so, pointing to the fact that in subsection (1)(a)1.a., the legislature did just that. The State insists we have already decided this issue adversely to the defendant, relying upon Harvey v. State, 17 So. 3d 890 (Fla. 4th DCA 2009). Harvey, though, stands only for the proposition that, in Florida, there is a distinction to be made between a "sexual predator" and a "sexual offender." While section 775.21, Florida Statutes, expressly requires the Florida courts to make a written finding that the defendant is a "sexual predator," section 943.0435 "contains no provision for a court order designating such offenders as sexual offenders," rather "they attain that status merely by virtue of their convictions.
However, that section "contains no provision for a court order designating offenders as sexual offenders; they attain that status merely by virtue of their convictions." Harvey v. State, 17 So.3d 890, 891 n. 2 (Fla. 4th DCA 2009). Accordingly, we reverse that portion of the order that designates Appellant a sexual predator and remand with instructions that the designation be stricken from the judgment.