Renoit SAINTELIEN, Petitioner, v. STATE of Florida, Respondent, 990 So. 2d 494

PER CURIAM. The district courts are in conflict regarding whether a challenge to a sexual predator designation imposed pursuant to

section 775.21(5), Florida Statutes (2003), may be raised in a Florida Rule of Criminal Procedure 3.800(

a) motion to correct an illegal sentence filed in criminal court. See Saintelien v. State, 937 So.2d 234, 235 (Fla. 4th DCA 2006) (requiring sexual predator designation challenges to be raised in separate civil proceedings); Boyer v. State, 946 So.2d 75 (Fla. 1st DCA 2006) (same); contra King v. State, 911 So.2d 229 (Fla. 2d DCA 2005) (permitting such challenges to be raised in criminal postcon-viction proceedings); Kidd v. State, 855 So.2d 1165 (Fla. 5th DCA 2003) (same). We resolve this conflict by holding that a rule 3.800(

a) motion to correct an illegal sentence may be used to challenge a sexual predator designation, but limit our holding to cases where it is apparent from the face of the record that the defendant did not meet the criteria for designation as a sexual predator. FACTUAL AND PROCEDURAL BACKGROUND On September 5, 2003, Saintelien was sentenced to two counts of attempted sexual battery on a child less than twelve years of age. Subsequently, the trial court entered an order designating Saintelien as a sexual predator.

Saintelien later filed a motion to correct an illegal sentence pursuant to rule 3.800(a), seeking to vacate his sexual predator designation. He alleged that the designation exceeded the terms of his plea agreement. The trial court denied Saintelien’s motion. The Fourth District affirmed, reasoning that because a sexual predator designation is neither a sentence nor a punishment, it cannot be challenged by filing a motion to correct an illegal sentence in criminal court. Rather, it held that such challenges must be raised in separate civil proceedings. Saintelien, 937 So.2d at 235 (citing Walker v.

State, 718 So.2d 217 (Fla. 4th DCA 1998); Connor v. State, 773 So.2d 1242 (Fla. 4th DCA 2000)). In so holding, the Fourth District certified conflict -with the Second District’s decision in King and the Fifth District’s decision in Kidd. DISCUSSION At the outset, we note that a defendant has the opportunity to appeal an order imposing a sexual predator designation under Florida Rule of Appellate Procedure 9.140(b)(1)(D), which grants appellate jurisdiction over criminal court orders “entered after final judgment or finding of guilt.” See State v. Robinson, 873 So.2d 1205, 1208-09 (Fla.2004).

However, a direct appeal does not give the trial court that made the designation the opportunity to correct any error it made. Moreover, there are various circumstances in which a defendant misses the window of opportunity to file a direct appeal. The confluence of this reality, the nature of sexual predator designations, and the structure of our procedural rules have engendered confusion and conflict in the lower courts that we must resolve. As stated earlier, the conflict issue we must resolve is whether a challenge to a sexual predator designation imposed pursuant to

section 775.21(5) may be raised in a rule 3.800(

a) motion to correct an illegal sentence filed in criminal court. Because this is a pure question of law, we review it de novo. See State v. McBride, 848 So.2d 287, 289 (Fla.2003) (reviewing de novo the question of whether defendant was procedurally barred from seeking rule 3.800(

a) relief). The First and Fourth Districts prohibit sexual predator designation challenges under the criminal postconviction rules because those rules provide vehicles for challenging sentences, and a sexual predator designation is not a sentence or punishment but merely a status. See Boyer, 946 So.2d at 75; Saintelien, 937 So.2d at 235. These two districts are correct that a sexual predator designation is “neither a sentence nor a punishment but simply a status resulting from the conviction of certain crimes.” § 775.21(3)(d), Fla. Stat. (2003).

Nonetheless, the reality is that, in order to fulfill the Florida Sexual Predators Act’s requirement that the sexual predator designation be made “upon conviction” of a qualifying offense, our criminal trial courts make the designation at (or shortly after) sentencing on the qualifying offense(s). See § 775.21(4)(a). In this unique circumstance, we agree with the Fifth District that, “it doesn’t much matter that a sexual predator designation is not a sentence or a punishment.” Nicholson v.

State, 846 So.2d 1217, 1219 (Fla. 5th DCA 2003). “When a claim of a sexual predator designation error is made, the trial judge who made the designation is the one in the best position to evaluate the claim and to correct the error.” Id.

Moreover, [i]f the sexual predator designation were merely a civil proceeding somehow appended to a criminal case and either a declaratory judgment action or a Rule 1.540 motion were the only vehicles for relief, the time frames would expand greatly, the difficulty and cost of the proceedings would explode, the judge evaluating the claim of error may well have no knowledge of the law or prior proceedings, indigent defendants would be pro se and who knows who would represent the State. Id.

The impracticality of requiring such challenges to be raised in separate civil proceedings is illustrated in Judge Alten-bernd’s opinion in King. As he explains, the Second District originally prohibited sexual predator designation challenges in criminal postconviction proceedings, see 911 So.2d at 231 (citing Angell v. State, 712 So.2d 1132, 1132 (Fla. 2d DCA 1998)), but this approach proved to be judicially inefficient. See id. at 231-33 (citing Coblentz v.

State, 775 So.2d 359, 360 (Fla. 2d DCA 2000) (remanding for Coblentz to raise his sexual predator designation challenge in a civil proceeding although the record strongly indicated that the designation was erroneous); Coblentz v. State, 855 So.2d 681, 682 (Fla. 2d DCA 2003) (ultimately reversing the civil division’s order denying Coblentz’s Florida Rule of Civil Procedure 1.540(

b) motion for relief from judgment challenging his sexual predator designation); Jackson v. State, 801 So.2d 212, 213 (Fla. 2d DCA 2001) (affirming the trial court’s order denying Jackson’s sexual predator designation challenge as improperly raised in a motion for postconviction relief); Jackson v. State, 893 So.2d 706, 707 (Fla. 2d DCA 2005) (ultimately reversing the trial court’s order denying Jackson civil relief regarding his sexual predator designation)).

Faced with the procedural impracticalities illuminated by Coblentz and Jackson, the Second District in King departed from its precedent and held that parties may challenge their sexual predator designations in postconviction motions under the rules of criminal procedure. King, 911 So.2d at 233 (citing Nicholson, 846 So.2d at 1219; Cabrera v. State, 884 So.2d 482, 484 (Fla. 5th DCA 2004)). In light of the above, we hold that a defendant may seek correction of an allegedly erroneous sexual predator designation by filing a rule 3.800(

a) motion to correct an illegal sentence in criminal court. See King, 911 So.2d at 233; Kidd, 855 So.2d at 1168. However, because rule 3.800(

a) is intended to correct errors that are apparent on the face of the record, we limit our holding to cases where it is apparent from the face of the record that the defendant did not meet the criteria for designation as a sexual predator. See Fla. R.Crim. P. 3.800(a) (“A court may at any time correct an illegal sentence ... when it is affirmatively alleged that the court records demonstrate on their face an entitlement to that relief.... ”). In this case, Saintelien’s rule 3.800(

a) motion sought to vacate his sexual predator designation. We agree with the trial court’s denial of his motion because the record shows that Saintelien met the criteria for designation as a sexual predator. CONCLUSION For the foregoing reasons, we approve the result of the Fourth District’s decision in Saintelien affirming the trial court’s denial of Saintelien’s 3.800(

a) motion to correct an illegal sentence. We also approve the opinions of the Second and Fifth Districts in King and Kidd to the extent that a rule 3.800(

a) motion may be used to challenge a sexual predator designation when it is apparent from the face of .the record that the defendant did not meet the criteria for designation as a sexual predator. It is so ordered. ANSTEAD, PARIENTE, LEWIS, and BELL, JJ., concur. CANTERO, J., concurs in result only with an opinion, in which WELLS, J., concurs. QUINCE, C.J., concurs in result only. . We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. . We note that Saintelien only seeks to vacate his designation as a sexual predator. He does not seek to withdraw his plea. . See, e.g., Fla. R.Crim. P. 3.800(a)-(b), 3.850. . We will refer the issue raised in this case to the appropriate committee(

s) to consider whether it would be appropriate or desirable to amend the procedural rules.