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State v Marcel

8-31-2011 Florida:

State v. Marcel

The appellee, Robert Marcel, pled nolo contendere to the offense of unlawfully and intentionally touching a person under sixteen years of age in a lewd or lascivious manner, in violation of section 800.04(6)(c), Florida Statutes (2001). Marcel was eighteen-years old at the time of the offense, and the victim fourteen-years old. The trial court withheld adjudication and sentenced Marcel to three-years probation. As a consequence of plea, Marcel automatically was designated a sexual offender, subject to lifetime registration and reporting requirements contained in section 943.0435, Florida Statutes (2001).

Seven years after the offense, the Florida Legislature added section 943.04354 to the Florida Statutes, providing an exception to the stigma of sex offender registration for consensual conduct by young people who satisfy certain specific conditions—so-called "Romeo and Juliet offenders." See § 943.04354, Fla. Stat. (2007); Miller v. State, 17 So.3d 778, 781 (Fla. 5th DCA 2009). One of the criteria for relief is that the defendant be "not more than [four] years older than the victim of th[e] violation who was [fourteen] years of age or older but not more than [seventeen] years of age at the time the person committed th[e] violation." § 943.04354(1)(c), Fla. Stat. (2007). The trial court in this case found this condition was met and granted relief to Marcel. The State seeks reversal on the ground the trial court erred in its finding that this criteria was satisfied. For the reasons stated below, we agree with the State.

The disagreement in this case revolves around the application of the phrase "not more than" in section 943.04354(1)(c) of the Florida Statutes. At the time of the violation in this case, Marcel was four years, three months, and eight days older than the victim. The State argues Marcel fails to meet the criteria for removal from registration under the statute because he is "more than" four years older than the victim. Marcel argues, and the trial court agreed, months and days should not be counted when determining the difference in age, rather the "completed years of life" should be considered. Under this interpretation of what is called the "birthday rule," a defendant would not be more than four years older than the victim until the person was five years older. On this analysis, Marcel would satisfy the condition we are called upon to interpret until he reached his nineteenth birthday.


Accordingly, we reverse the trial court order granting removal from the sex offender registry, with directions to deny the petition.

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