Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT KEVIN HURTADO, Appellant, v. STATE OF FLORIDA, Appellee. No. 2D20-2478 November 24, 2021 Appeal pursuant to Fla. R. App. P. 9.140(b)(1)(D) from the Circuit Court for Hillsborough County; Kimberly K. Fernandez, Judge. Maria Pavlidis of McCarty Gonzalez Pavlidis & Whidden LLC, Tampa, for Appellant. Ashley Moody, Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Appellee. VILLANTI, Judge. Kevin Hurtado appeals the postconviction court’s order denying his motion to remove the requirement that he register as a sexual offender, filed pursuant to section 943.04354, Florida Statutes (2019). We reverse. In his motion, Hurtado specifically asserted that he meets the criteria under section 943.04354, often referred to as to the "Romeo and Juliet" statute, to warrant removal of the sexual offender registration requirement and that such removal would not conflict with federal law.1 Despite some argument from the State, Hurtado appeared to qualify for removal of the registration requirement. The postconviction court exercised its discretion per section 943.04354(2)(b) to deny the motion but did not explain its reasoning. This omission requires this court to reverse. See Matos v. State, 111 So. 3d 964, 967 (Fla. 5th DCA 2013) ("The State is correct that the trial court has discretion to deny the petition even where a defendant meets all the criteria. That discretion, however, 1 Section 943.04354 permits offenders convicted of certain crimes to move for removal of automatic lifetime sexual offender registration requirements if the victim was thirteen years of age or older but not older than eighteen at the time of the offense, and the defendant was not more than four years older than the victim. It also requires that removal not conflict with federal law. See § 943.04354(1)(c), (2)(b); 42 U.S.C. § 16911(5)(c) (2011) (the "Adam Walsh Act") (excluding consensual sexual conduct from the definition of "sex offense" where "the victim was at least 13 years old and the offender was not more than 4 years older than the victim"). 2 is not unbridled and the court must set forth the basis of its determination." (citing Clark v. State, 95 So. 3d 986, 989 (Fla. 2d DCA 2012))). In doing so, we must address this court's decision in Clark. In Clark, this court held that although the postconviction court erred by failing to explain its reasoning for denying Mr. Clark's motion to remove the requirement to register as a sexual offender, Mr. Clark's motion was untimely. See Clark, 95 So. 3d at 989. At the time Mr. Clark filed his motion, the statute provided that when a defendant who committed a designated offense on or after July 1, 2007, sought relief from the sexual offender registration requirement, the state attorney must be given notice of the motion at least twenty-one days prior to sentencing or disposition of the violation and that the court must rule on the motion at sentencing or the disposition of the violation. See § 943.04354(2), Fla. Stat. (2007). In Clark, this court relied on this provision to hold that, because Mr. Clark filed his motion after sentencing, the motion was untimely. See Clark, 95 So. 3d at 989. In 2014, the legislature amended section 943.04354. Ch. 1014-5 Laws of Fla. The statute now requires that "[t]he state 3 attorney and the [Florida Department of Law Enforcement (FDLE)] must be given notice of the motion at least 21 days before the date of sentencing, disposition of the violation, or hearing on the motion." § 943.04354(2)(b) (emphasis added). Similarly, the court must rule on the motion "[a]t sentencing, disposition of the violation, or hearing on the motion." Id. Because the current version of the statute contemplates that the motion may be disposed of at a hearing and does not necessarily have to be disposed of at sentencing or at disposition of the violation, a defendant may file the motion at any time.2 Finally, we are not troubled by the application of the current version of the statute to Hurtado. This court has upheld the application of the sexual offender registration requirement to defendants who were convicted prior to its enactment. See Givens v. State, 851 So. 2d 813, 814-15 (Fla. 2d DCA 2003) (noting that the retroactive application sexual offender registration requirement 2 Successive motions to remove the registration requirement are not authorized. See § 943.04354(2)(b) ("If the court denies the motion, the person is not authorized under this section to file another motion for removal of the registration requirement."). 4 in section 943.0435, Florida Statutes, "is procedural in nature and does not violate the Ex Post Facto Clause"). The 2014 amendments to section 943.04354 are necessarily procedural, if not remedial, so that prospective application of the statute is required as the "commonsense" and "ordinary" result. See Love v. State, 286 So. 3d 177, 188 (Fla. 2019). "[T]he mere application of a new procedural statute—like section 776.032(4)—in a pending case is not a retroactive application." Id. at 189. Accordingly, we reverse the trial court's order denying Hurtado's motion to remove the sexual offender registration requirement and remand for further proceedings consistent with this opinion. Reversed and remanded. STARGEL, J., Concurs. ATKINSON, J., Concurs in result only. Opinion subject to revision prior to official publication. 5