5D07-10 Gregory Miller v. State

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State: Florida

Court: Florida Fifth District Court

Docket No: 5D07-10

Case Date: 12/24/2007

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JULY TERM 2007

GREGORY D. MILLER, Appellant, v. STATE OF FLORIDA, Appellee. ________________________________/ Opinion filed December 28, 2007 Appeal from the Circuit Court for Orange County, Alicia Latimore, Judge. James S. Purdy, Public Defender, and Thomas J. Lukashow, Assistant Public Defender, Daytona Beach, for Appellant. Bill McCollum, Attorney General, Tallahassee, and Jeffrey R. Casey, Assistant Attorney General, Daytona Beach, for Appellee. Case No. 5D07-10

ORFINGER, J. Gregory D. Miller appeals an order denying his motion to dismiss an information charging him with one count of failure of sexual offender to report in person at a driver's license office in violation of section 943.0435(9) and (3), Florida Statutes (2006). On appeal, Mr. Miller argues that the statute violates his right to equal protection by requiring him to register with the Florida Sex Offender Registry as a result of an offense

he committed in West Virginia in 1994, while exempting similarly-situated Florida sex offenders from the registration requirement. For the reasons that follow, we affirm. In 1994, Mr. Miller was convicted of a sex crime in West Virginia and designated a sex offender. He was sentenced to prison and released in 1996. Mr. Miller was required to register as a sex offender in West Virginia. Following a move to Florida, Mr. Miller was advised by law enforcement of his registration obligation. After several

months passed and Mr. Miller failed to register, he was charged with failing to report as a sex offender at a driver's license office, in violation of sections 943.0435(9) and (3), Florida Statutes. Mr. Miller moved to dismiss the information on the ground that section 943.0435 was unconstitutional as applied to him, alleging that the statute treated similarly-situated sex offenders differently. After the denial of his motion to dismiss, Mr. Miller pled no contest to the charge, reserving the right to appeal the denial of his dispositive motion to dismiss. This appeal followed. A motion to dismiss an information pursuant to Florida Rule of Criminal Procedure 3.190(c)(4) is analogous to a motion for summary judgment in a civil case. State v. Bonebright, 742 So. 2d 290, 291 (Fla. 1st DCA 1998); Allen v. State, 463 So. 2d 351 (Fla. 1st DCA 1985). Both should be granted sparingly. State v. Fuller, 463 So. 2d 1252 (Fla. 5th DCA 1985). The trial court should not decide factual issues,

determine the weight to be given to conflicting evidence or assess the credibility of witnesses. State v. Feagle , 600 So. 2d 1236, 1239 (Fla. 1st DCA 1992). In this appeal, Mr. Miller seeks our review of his constitutional challenge to section 943.0435(1), Florida Statutes. We review the constitutionality of this statute de novo, as it presents a pure question of law. Dep't of Ins. v. Keys Title & Abstract Co.,

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741 So. 2d 599, 601 (Fla. 1st DCA 1999).

Further, because there is a strong

presumption that statutes are constitutionally valid, see City of Miami v. McGrath, 824 So. 2d 143, 146 (Fla. 2002), we are obligated to interpret the statute in a manner so as to uphold its constitutionality if it is reasonably possible to do so. Capital City Country Club, Inc. v. Tucker, 613 So. 2d 448, 452 (Fla. 1993). The equal protection clause of the United States Constitution provides that "[n]o state shall . . . deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. Amend. XIV ,

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