LAFE TRAVIS BEST vs STATE OF FLORIDA

• Court: District Court of Appeal of Florida
• Decided: August 26, 2022
• Docket: 21-3114
• Status: Published

Opinion

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

LAFE TRAVIS BEST,

Appellant, Case No. 5D21-3114 v. LT Case No. 2019-300771-CFB

STATE OF FLORIDA,

Appellee. ________________________________/

Decision filed August 26, 2022

Appeal from the Circuit Court for Volusia County, Matthew M. Foxman, Judge.

Ryan Thomas Truskoski, of Ryan Thomas Truskoski, P.A., Orlando, for Appellant.

Ashley Moody, Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Appellee.

PER CURIAM.

AFFIRMED.

HARRIS and WOZNIAK, JJ., concur. COHEN, J., concurs specially, with opinion. Case No. 5D21-3114 LT Case No. 2019-300771-CFB

COHEN, J., concurring specially.

The issue in this appeal would have been whether Lafe Travis Best

was correctly designated a sexual predator under section 775.21(4)(a),

Florida Statutes (2018), Florida’s Sexual Predators Act. I write only because

this case presents the quintessential example of failing to make a specific

objection for purposes of preserving an issue for appellate review.

The State charged Best with one count of conspiracy to commit sexual

battery on a person less than twelve years of age and eleven counts of

possession of sexual performance by a child. 1 The charging affidavit alleged

that Best conspired with another man, Benjamin Worster, to commit

molestation upon a three-year-old female child who was residing with

Worster, as evidenced by text messages between the two men. Best entered

a no contest plea to all counts.

At the sentencing hearing, and in a written sentencing

recommendation, Best’s counsel objected to the trial court designating Best

1 §§ 794.011(2)(a), 777.04(3), 827.071(5), 775.0847(2), (3), Florida Statutes (2018), respectively. Best’s sexual predator designation stemmed from his conspiracy to commit sexual battery conviction. The convictions for possession of sexual performance by a child could not be a basis for the designation because Best had not been previously convicted under one of the enumerated statutes. See § 775.21(4)(a)1.b., Fla. Stat. 2 a sexual predator because he had no history of predatory behavior, there

was no aggravating reason for such a designation, he was not integrally

involved in the events, he had never met the child-victim, and such

designation “would offend justice.” The State responded that Best was

required to be designated as a sexual predator pursuant to section

775.21(4)(a) because he pled to, and was about to be convicted of, a first-

degree felony under section 794.011. The trial court designated Best a

sexual predator as part of the sentencing order.

On appeal, and for the first time, Best argues that he was convicted of

only conspiracy to commit sexual battery, not the substantive offense or an

attempted sexual battery under section 794.011, and therefore the sexual

predator statute does not apply to his conviction. While it might seem intuitive

that a person who conspired to have sex with a three-year-old child is the

precise individual appropriate for sexual predator designation, we must

examine the plain language of the statute to analyze the argument. See State

v. Patterson, 325 So. 3d 142, 144 (Fla. 5th DCA 2020) (citing Leftwich v. Fla.

Dep’t of Corr., 148 So. 3d 79, 87 (Fla. 2014)).

Florida’s Sexual Predators Act provides in relevant part:

(a) For a current offense committed on or after October 1, 1993, upon conviction, an offender shall be designated as a “sexual predator” under subsection (5), and subject to registration under 3 subsection (6) and community and public notification under subsection (7) if:

1. The felony is:

a. A capital, life, or first degree felony violation, or any attempt thereof, of . . . s. 794.011, . . . or a violation of a similar law of another jurisdiction[.]

§ 775.21(4)(a)1.a., Fla. Stat.

The State acknowledges that the sexual predator statute does not

specifically include conspiracy to commit the enumerated substantive crime

of sexual battery but argues that Best’s sexual predator designation was

required because he was nonetheless convicted of a first-degree felony. In

the State’s view, the conspiracy rendered Best’s conviction a first-degree

felony for the substantive crime, because section 794.011 works in

conjunction with the conspiracy statute, sections 777.04(3) and (4).

However, the State’s position impermissibly merges conspiracy into the

underlying offense. See Kocol v. State, 546 So. 2d 1159, 1160 (Fla. 5th DCA

1989) (“[T]he crime of conspiracy is a separate and distinct crime from the

offense which is the object of the conspiracy.” (citation omitted)); see also

Ramirez v. State, 371 So. 2d 1063, 1065 (Fla. 3d DCA 1979) (“[C]onspiracy

is one step removed from an attempt to commit the offense which is the

object of the conspiracy, and, thus, is two steps removed from the actual

4 commission of the substantive offense.” (citation omitted)). The State has not

provided any authority demonstrating an exception to that general principle.

A similar issue was recently addressed by the First District Court of

Appeal, albeit in a different context. See Fla. Dep’t of Corr. v. Gould, 47 Fla.

L. Weekly D1273 (Fla. 1st DCA June 10, 2022). The issue in Gould was

whether the defendant was entitled to gain time where he was convicted of

attempted sexual battery rather than the completed offense or an attempt

thereof that resulted in injury to the child-victim’s sex organs. Id. at D1276.

The First District found that the language in section 777.04(1) (criminal

attempt) designated that offense as separate from the offense attempted

and, therefore, a violation of section 777.04(1) did not constitute a violation

of any other criminal statutes, including section 794.011 (sexual battery). Id.

at D1277 (“Section 777.04 does not modify any criminal offense statutes. It

is a standalone crime with its own punishment scheme, and a violation of the

statute does not constitute a violation of any other criminal statutes.”).

Likewise, here, the sexual predator statute requires such a designation

if Best was convicted of a violation of section 794.011, or any attempt thereof.

See § 775.21(4)(a)1.a., Fla. Stat. Just as the language in section 777.04(1)

references “the offense of criminal attempt,” section 777.04(3) references

“the offense of criminal conspiracy.” § 777.04(1), (3), Fla. Stat. In any event,

5 as meritorious as Best’s legal argument might be, he has not preserved this

issue for appeal. See Frandi v. State, 244 So. 3d 1180, 1181 (Fla. 1st DCA

2018) (affirming sexual predator designation where appellant failed to

present argument to trial court either at sentencing hearing or in Florida Rule

of Criminal Procedure 3.800 motion, and appellant cannot raise issue for first

time on appeal). While Best objected to his designation as a sexual predator,

he did not articulate below the specific basis he now presents on appeal,

forfeiting that opportunity.