FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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No. 1D17-1641
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SAM CASSEUS,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
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On appeal from the Circuit Court for Leon County.
Martin A. Fitzpatrick, Judge.
February 4, 2019
PER CURIAM.
Sam Casseus was accused of engaging in sexual activity with
his 13-year-old stepdaughter. He pled guilty to charges of sexual
battery by a person in familial or custodial authority and lewd or
lascivious molestation in exchange for concurrent terms of time
served followed by sex offender probation. After sentencing,
Casseus moved to withdraw his plea because he was not told that
he would be subject to mandatory electronic monitoring as a
condition of probation. Casseus now appeals the denial of his
motion, arguing that mandatory electronic monitoring is a direct
consequence of his plea and failure to advise him of this condition
renders the plea involuntary. We affirm.
The pertinent facts are straightforward and undisputed.
Section 948.30, Florida Statutes (2014), sets forth a list of
additional terms and conditions of probation or community
control for certain sex offenses. They are considered standard
conditions and do not require oral pronouncement at the time of
sentencing. § 948.30, Fla. Stat. Relevant to this case, the trial
court is required to order mandatory electronic monitoring as a
condition of probation. § 948.30(3), Fla. Stat. The parties agree
that Casseus was not informed of the mandatory nature of this
condition prior to entering his guilty plea. They disagree,
however, on whether this provides a basis for Casseus to
withdraw his plea after sentencing.
When a defendant seeks to withdraw a guilty plea after
sentencing, he must demonstrate that withdrawal is necessary to
correct a manifest injustice. Campbell v. State, 125 So. 3d 733,
736 (Fla. 2013). In the interest of finality, this is a heavier
burden than that required to withdraw a plea prior to sentencing.
State v. Partlow, 840 So. 2d 1040, 1044 (Fla. 2003) (Cantero, J.,
concurring). One way to show manifest injustice is by proving the
plea was not entered voluntarily. Woodall v. State, 39 So. 3d 419,
421 (Fla. 5th DCA 2010); see also Fla. R. Crim. P. 3.170(l); Fla. R.
App. P. 9.140(b)(2)(A)(ii)(c). “[I]f a defendant’s guilty plea is not
equally voluntary and knowing, it has been obtained in violation
of due process and is therefore void.” Bolware v. State, 995 So. 2d
268, 272 (Fla. 2008) (quoting McCarthy v. United States, 394 U.S.
459, 466 (1969)).
“The voluntariness of a plea depends on whether the
defendant is aware of the direct consequences of the plea and
those consequences listed in Florida Rule of Criminal Procedure
3.172(c).” Partlow, 840 So. 2d at 1042. By contrast, the failure to
inform a defendant about a collateral consequence of the plea
does not render the plea involuntary. Id. at 1043. The distinction
between a direct and collateral consequence “turns on whether
the result represents a definite, immediate, and largely
automatic effect on the range of the defendant’s punishment.”
Major v. State, 814 So. 2d 424, 429, 431 (Fla. 2002) (citing
Zambuto v. State, 413 So. 2d 461, 462 (Fla. 4th DCA 1982)).
“[N]either the seriousness of the sanction nor its burden on the
defendant affects the inquiry.” Bolware, 995 So. 2d at 274. The
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supreme court has clearly stated that “for a penalty to be deemed
a direct consequence of a plea, it must constitute punishment.” Id.
at 273. Thus, the question here is whether mandatory electronic
monitoring constitutes “punishment” in this context.
Courts have found that direct consequences of a plea—those
that affect the range of punishment—include any applicable
mandatory minimum penalties, the statutory maximum
sentence, the application of jail credit, and whether any sentence
enhancement designations such as the habitual felony offender
statute apply. See State v. Coban, 520 So. 2d 40 (Fla. 1988)
(mandatory minimum term is a direct consequence of a plea);
Polite v. State, 990 So. 2d 1242 (Fla. 3d DCA 2008) (maximum
penalty that could be imposed upon a violation of probation or
community control is a direct consequence of a plea); Reyna v.
State, 18 So. 3d 1131, 1133 (Fla. 2d DCA 2009) (“Credit for time
served, or jail credit, is a direct consequence of a plea because it
affects the range of punishment—in this case, the length of Mr.
Reyna’s incarceration—in a definite manner, immediately and
automatically upon imposition of a sentence.”); Hampton v. State,
217 So. 3d 1096 (Fla. 5th DCA 2017) (defendant must be made
aware of the reasonable and direct consequences of
habitualization prior to entering a plea).
Conversely, courts have found that mandatory registration
as a sexual offender does not constitute punishment, and thus is
not a direct consequence of the plea. In Partlow, the supreme
court was asked to resolve a conflict between the First and
Fourth Districts on the issue of “whether, after being sentenced
for a sexual offense pursuant to a plea of guilty or nolo
contendere, a defendant may withdraw his plea as involuntary
because he was not informed of the sexual offender registration
requirement.” 840 So. 2d at 1041. The supreme court agreed with
this Court’s decision in Nelson v. State, 780 So. 2d 294 (Fla. 1st
DCA 2001), and held that the sexual offender registration
requirement was a collateral consequence of the plea, and
therefore failure to inform the defendant of that requirement
before he entered the plea did not render the plea involuntary. Id.
at 1043. The court reasoned that the sexual offender registration
requirement had no effect on the “range of the defendant’s
punishment” because “the requirement to register is not
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punishment at all.” Id. The court explained that “the defendant
faces no further punishment for this crime simply because the
law imposes other duties as a result.” Id.
Similarly, in Bolware the supreme court held that revocation
of a driver’s license based on habitual traffic offender status does
not constitute punishment. 995 So. 2d at 275. The court
acknowledged that the loss of driving privileges constitutes a
personal hardship, but recognized that hardship does equate to
punishment. Id. Thus, license revocation is not a direct
consequence of a plea for which a defendant must be informed to
ensure that the plea is voluntary. * Id.
The instant case presents a situation analogous to the sexual
offender registration requirement and the loss of driving
privileges, which are not considered punishment, no matter how
definite, immediate, automatic, or onerous. Although the trial
court is statutorily required to order electronic monitoring as a
condition of sexual offender probation, it is not a direct
consequence of the plea, as it does not affect the range of
punishment for the crime. Unlike the cases finding a consequence
to be direct, being required to wear an electronic monitor does not
affect the term of probation or what sentence an offender faces for
the charged crime. Any burden or embarrassment caused by the
device would not be any different than requiring the offender to
register for life as a sexual offender or predator. Cf. Belleau v.
* The court recognized that, while not a direct consequence of
a plea, the suspension or revocation of a driver's license
constitutes such a serious consequence that a defendant should
be informed of it pursuant to rule. Bolware, 995 So. 2d at 276.
Accordingly, the court directed “that [rule 3.172] be amended as
we have done with other consequences that we found to be
collateral but of substantial importance.” Id.; see In re
Amendments to Fla. Rules of Criminal Procedure 3.172 & 3.985 &
Amendments to Fla. Rules of Civil Procedure 1.985, 20 So. 3d 376
(Fla. 2009) (amending 3.172(c) to require trial court to inform
defendant regarding mandatory driver’s license suspension or
revocation).
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Wall, 811 F.3d 929, 937 (7th Cir. 2016) (“Having to wear [an
electronic GPS] monitor is a bother, an inconvenience, an
annoyance, but no more is punishment than being stopped by a
police officer on the highway and asked to show your driver’s
license is punishment, or being placed on a sex offender registry. .
. .”). Accordingly, we hold that mandatory electronic monitoring
as a condition of probation under § 948.30 is not punishment and,
therefore, Casseus is not entitled to withdraw his plea.
In reaching our decision, we have not overlooked Casseus’s
reliance on Witchard v. State, 68 So. 3d 407 (Fla. 4th DCA 2011).
In that case, the Fourth District held that the requirement that a
trial court impose electronic monitoring on certain sex offenders
who violate their probation applies only to probationers whose
offenses occurred on or after the effective date of the statute. 68
So. 3d at 411 (construing § 948.063, Florida Statutes). The court
reasoned that application of the statute to probationers who
committed their crimes prior to its effective date violated the ex
post facto clause of the constitution because the law “changes the
punishment, and inflicts a greater punishment, than the law
annexed to the crime, when committed.” Id. 409. Although
Witchard found that mandatory electronic monitoring constitutes
“punishment” for ex post facto purposes, we are guided by the
precedent discussed above on the issue of whether due process
requires that a defendant be informed of a particular sanction
before entering a plea of guilty.
AFFIRMED.
WOLF, LEWIS, and RAY JJ., concur.
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Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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Terry P. Roberts of Law Office of Terry P. Roberts, Tallahassee,
for Appellant.
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Ashley B. Moody, Attorney General, and Barbara Debelius,
Assistant Attorney General, Tallahassee, for Appellee.
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