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SLIP OPINION



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AG number: 7019Style: State vs. Wiita
Jurisdiction: 4th DCADate issued: June 30, 1999
Original file, if available:7019.wpd

AG HEADNOTE


Voluntariness of appeal
Because a defendant could not have anticipated the retroactive application of a sex offender reporting and registration law when he entered his guilty plea, the plea was not entered knowingly and voluntarily and must be reversed, the 4th DCA held.
In 1991, Bruce Wiita pled guilty to lewd assault and sexual activity with a child. Pursuant to the 1997 enactment of section 943.0435, F.S., Wiita registered with FDLE and his name and photograph were subsequently posted on the Internet as a sexual offender. A trial court later vacated Wiita’s sentence, concluding that his 1991 plea was not entered knowingly and voluntarily. The DCA affirmed.
“Based upon the fact that Wiita entered a plea to avoid publicity, then six years later had publicity thrust upon him due to the requirements of section 943.0435, justice and fairness support the withdrawal of Wiita’s plea in this case,” the DCA said. The DCA declined to address whether applying the statute to Wiita constitutes an ex post facto violation because the issue was not raised at trial.



IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT JANUARY TERM 1999


STATE OF FLORIDA,

Appellant,

v. CASE NO. 98-2248

BRUCE BRIAN WIITA,

Appellee.


Opinion filed June 30, 1999

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Harold J. Cohen, Judge; L.T. Case No. 91-1945CFA02.

Robert A. Butterworth, Attorney General, Tallahassee, and Sarah B. Mayer, Assistant Attorney General, West Palm Beach, for appellant.

James K. Green of James K. Green, P.A., West Palm Beach, and Richard G. Lubin of Lubin and Gano, P.A., West Palm Beach, for appellee.

HAZOURI, J.
Appellant, the State of Florida ("the state"), appeals from an Order Granting Defendant's Sworn Motion to Vacate Sentence. Because we find that the trial court did not abuse its discretion by entering the Order, we affirm.
On June 13, 1991, the state filed an information that charged Bruce Wiita ("Wiita") with three counts of lewd assault and three counts of sexual activity with a child. On June 24, 1991, Wiita pled guilty to one count of lewd assault and one count of sexual activity with a child pursuant to a negotiated plea agreement. The plea agreement provided that the state would nolle prosse all of the other counts, that adjudication would be withheld, and that Wiita would be sentenced to ten years probation. The plea agreement further provided that Wiita: would pay for the victim's medical and psychological counseling costs up to $5000; would receive a psychological evaluation and treatment as recommended; would have no contact with the victim; would have no unsupervised contact with children under the age of eighteen years, except his own, until his psychologist approved; would complete 500 hours community service within the first five years of his probation; and that probation could terminate after seven years if all conditions had been satisfied and his psychologist approved.
On October 1, 1997, section 943.0435 of the Florida Statutes was enacted. Section 943.0435, which is retroactive in nature, requires persons convicted of sexual offenses to report to the Florida Department of Law Enforcement (FDLE). Wiita complied with the reporting requirements of section 943.0435, and FDLE subsequently posted his name and photograph on the Internet as a sexual offender. On June 4, 1998, Wiita filed a motion to vacate his sentence and/or preclude his compliance with section 943.0435, Florida Statutes. Wiita claimed that because section 943.0435 was not in effect at the time he entered his plea agreement, the reporting and publication requirements of the statute were neither contemplated nor made a part of his plea agreement. Based upon these facts, Wiita argued that good cause existed to vacate his plea because it was not entered knowingly or voluntarily.
At the hearing on the motion, Wiita testified that the only reason he entered a plea to the charges was to shelter his wife, who was pregnant at the time and had previously endured four miscarriages, from the publicity and stress associated with a trial. Wiita also stated he never would have entered into the plea agreement if he knew his name and photograph would be published on the Internet, that his children's school would be notified that he was a sexual offender, or that his name would be published as a sexual offender in a local newspaper. The trial court found that Wiita did not enter his guilty plea with an understanding of the full consequences of the plea. Thus, the trial court held Wiita's plea was not freely and voluntarily entered. The Order Granting Defendant's Sworn Motion to Vacate Sentence was entered, which also stated that Wiita was no longer subject to the provisions of section 943.0435. The state appeals the trial court's order.
Although Wiita's motion to withdraw his plea stated that applying section 943.0435 to him was an ex post facto violation, at the hearing his counsel stated "[y]es, so -- It applies retroactively, it's ex-post [sic] facto and all of that, but I'm not making the Constitutional argument." This statement clearly demonstrates that Wiita expressly waived any ex post facto argument and failed to preserve the issue for appellate review. Furthermore, the state failed to seek a definitive ruling from the trial court on the issue of the ex post facto application of the statute. Therefore, this court will not address whether applying section 943.0435 to Wiita constitutes an ex post facto violation because the argument was not properly raised before the trial court. See Trushin v. State, 425 So. 2d 1126 (Fla. 1982); Collie v. State, 710 So. 2d 1000 (Fla. 2d DCA), rev. denied, 722 So. 2d 192 (Fla.), cert. denied, 119 S. Ct. 624 (1998); Springfield v. State, 443 So. 2d 484 (Fla. 2d DCA 1984).
A trial court's decision regarding the withdrawal of a plea will generally not be disturbed on appeal absent a showing of an abuse of discretion. See Hunt v. State, 613 So. 2d 893, 896 (Fla. 1992). Where a defendant challenges a guilty plea after sentencing, the defendant must prove that a manifest injustice has occurred. See LeDuc v. State, 415 So. 2d 721, 722 (Fla. 1982). The state argues Wiita's challenge to his guilty plea was ineffective because he failed to show that a manifest injustice occurred. However, the evidence clearly indicates that the requirements imposed by section 943.0435 did not exist, and were not contemplated, when Wiita entered into the plea agreement. A manifest injustice occurred in this case because Wiita gave up his right to a jury trial to avoid publicity and stress, yet was subjected to the publicity and stress he wanted to avoid by a statute enacted six years after the plea agreement was entered into.
The state also argues that the trial court abused its discretion in allowing Wiita to withdraw his plea because the reporting requirements of section 943.0435 should be considred collateral in nature. To support this argument, the state points to numerous cases holding that the reporting/registration requirements of the Sexual Predator Act, which are similar to those in section 943.0435, are a collateral consequence of conviction and are not a part of the sentence. See Ortega v. State, 712 So. 2d 833 (Fla. 4th DCA 1998); Collie, 710 So. 2d 1000 (Fla. 2d DCA 1998); Burkett v. State, 23 Fla. L. Weekly D1630 (Fla. 2d DCA July 8), rev. denied, 719 So. 2d 892 (Fla. 1998); Benitez v. State, 667 So. 2d 476 (Fla. 3d DCA 1996). However, these cases are not directly on point because they do not specifically address whether a defendant's guilty plea was entered knowingly and voluntarily when a law containing reporting/registration requirements is subsequently enacted and applied retroactively.
The withdrawal of a plea should be permitted where justice and fairness require it. See Mackler v. State, 500 So. 2d 256, 258 (Fla. 3d DCA 1986)(citation omitted). Based upon the fact that Wiita entered a plea to avoid publicity, then six years later had publicity thrust upon him due to the requirements of section 943.0435, justice and fairness support the withdrawal of Wiita's plea in this case. There is adequate evidence in the record to support the conclusion that Wiita's plea was not entered into knowingly and voluntarily, and reasonable persons could differ as to the propriety of the action taken by the trial court. We therefore find that the trial court did not abuse its discretion in entering the Order Granting Defendant's Sworn Motion to Vacate Sentence. See Canakaris v. Canakaris, 382 So. 2d 1197, 1203 (Fla. 1980).
AFFIRMED.
DELL and STEVENSON, JJ., concur.
NOT FINAL UNTIL THE DISPOSITION OF ANY TIMELY FILED MOTION FOR REHEARING.
 
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