Third District Court of Appeal
State of Florida
Opinion filed September 30, 2026.
Not final until disposition of timely filed motion for rehearing.
No. 3D24-1122
Lower Tribunal No. F92-17270
State of Florida,
Appellant,
vs.
Elpidio Hernandez,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Teresa Pooler, Judge.
James Uthmeier, Attorney General, and Sandra Lipman, Senior
Assistant Attorney General, for appellant.
Law Offices of Ron M. Kleiner, and Ron M. Kleiner, for appellee.
Before MILLER, GORDO and BOKOR, JJ.
BOKOR, J.
The State appeals an order granting Elpidio Hernandez’s petition to
remove the requirement that he register as a sexual offender. Hernandez
sought relief under the version of section 943.0435(11), Florida Statutes, in
effect when he completed his sanctions in 2002, which permitted an eligible
registrant to petition for removal after 20 years. The State contends that the
version in effect when Hernandez petitioned in 2024 controls. That version
requires 25 years. We agree with the State for the reasons that follow.
I
In 1992, Hernandez received a withhold of adjudication for lewd and
lascivious assault on a child, three counts of indecent exposure, two counts
of battery, one count of false imprisonment, and two counts of soliciting a
first-degree felony. The underlying criminal case was a consolidation of three
separate cases with three separate victims. Hernandez attempted to kidnap
two of the victims. The third victim was three years old when Hernandez was
observed masturbating in a mall parking lot while licking his tongue toward
the victim. Hernandez was sentenced to a two-year term of community
control followed by an eight-year probationary term. Hernandez’s term of
supervision ended in June 2002. The statutory provision in effect at the time
of termination of supervision allowed an eligible sexual offender who had
been released from confinement, supervision, or sanction for at least 20
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years, and had not been arrested for any felony or misdemeanor since
release, to petition the criminal division of the circuit court for removal of the
sex offender registration requirement. § 943.0435(11), Fla. Stat. (2002).
After satisfying those threshold requirements, removal remained
discretionary and depended on additional findings, including compliance with
federal standards and the absence of a current or potential threat to public
safety. Id.
In 2007, the Legislature amended section 943.0435(11) to allow a sex
offender to petition for removal from the registration requirement after 25
years from release from confinement, supervision, or sanction. Ch. 2007-209, § 2, Laws of Fla. The amendment took effect on July 1, 2007. Id. § 15.
At that point, Hernandez was only about five years removed from release,
well short of either the former 20-year requirement or the now-imposed 25-year requirement.
On March 28, 2024, Hernandez petitioned for removal under the 2002
version of the statute. Although more than 20 years had elapsed since his
release from sanctions, 25 years had not. The trial court applied the former
20-year period, granted the petition, and directed the Florida Department of
Law Enforcement to remove Hernandez from the registry. This appeal
followed.
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II
We first address our jurisdiction. If this were a criminal proceeding, the
order would not fall within the State’s authorized appeals under Florida Rule
of Appellate Procedure 9.140(c). Because the proceeding is civil in nature,
however, we have jurisdiction to review a final order under rule
9.030(b)(1)(A). As explained recently by our sister court in Florida
Department of Law Enforcement v. Garcia, 51 Fla. L. Weekly D1820, at *1
(Fla. 4th DCA Sept. 2, 2026), we conclude that we have jurisdiction because
a petition for removal concerns a civil regulatory requirement, not a criminal
sentence. A petition under section 943.0435(11) does not challenge the
criminal judgment or sentence. Instead, it seeks relief from a continuing
statutory registration obligation imposed by chapter 943. That the statute
directs the petition to the criminal division of the circuit court doesn’t convert
an otherwise civil regulatory proceeding into a criminal one. Id. at *4–7.
We support this conclusion with the text of the statute at issue. The
statute expressly provides that designation as a sexual offender “is not a
sentence or a punishment but is simply the status of the offender.” §
943.0435(12), Fla. Stat. (2024). Consistent with that declaration, the United
States Supreme Court characterizes comparable registration laws as
nonpunitive civil regulatory schemes. Smith v. Doe, 538 U.S. 84, 92, 102,
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105–06 (2003). The Florida Supreme Court similarly explains that
registration has “absolutely no effect on the ‘range of the defendant’s
punishment’” and is merely a collateral consequence of the conviction. State
v. Partlow, 840 So. 2d 1040, 1043 (Fla. 2003). And Florida courts repeatedly
describe section 943.0435 as regulatory and procedural. See Simmons v.
State, 753 So. 2d 762, 763 (Fla. 4th DCA 2000); Freeland v. State, 832 So.
2d 923, 923 (Fla. 1st DCA 2002); Givens v. State, 851 So. 2d 813, 814–15
(Fla. 2d DCA 2003).
Our court has further confirmed that the registration obligation is
collateral to, and not imposed as part of, the judgment and sentence. See
State v. Brena, 278 So. 3d 850, 854–55 (Fla. 3d DCA 2019); see also State
v. Whitt, 96 So. 3d 1125, 1126 (Fla. 5th DCA 2012). We recognize that State
v. Korson, 413 So. 3d 207 (Fla. 2d DCA 2025), treated an order granting
removal as part of a criminal proceeding. But we agree with the jurisdictional
analysis in Garcia. Unlike an order terminating probation, the order here
doesn’t alter a criminal sentence. See LaFave v. State, 149 So. 3d 662, 664–
65 (Fla. 2014). It adjudicates a request for relief from an independent civil
regulatory obligation. We therefore have jurisdiction under rule
9.030(b)(1)(A). See also State v. Marcel, 67 So. 3d 1223, 1224–25 (Fla. 3d
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DCA 2011) (reviewing by direct appeal an order granting removal under
section 943.04354, Florida Statutes).
III
Turning to the merits, the dispositive question is which version of
section 943.0435 applies. We review that question de novo. See Bionetics
Corp. v. Kenniasty, 69 So. 3d 943, 947 (Fla. 2011). Generally, substantive
laws are presumed to apply prospectively absent clear legislative intent to
the contrary. But that presumption doesn’t apply to procedural or remedial
statutes, which may properly apply retrospectively. See State Farm Mut.
Auto. Ins. Co. v. Laforet, 658 So. 2d 55, 61 (Fla. 1995); Village of El Portal
v. City of Miami Shores, 362 So. 2d 275, 278 (Fla. 1978). Procedural law
concerns the “means and methods to apply and enforce” duties and rights;
substantive law prescribes those duties and rights. Alamo Rent-A-Car, Inc.
v. Mancusi, 632 So. 2d 1352, 1358 (Fla. 1994).
Section 943.0435 is procedural and regulatory, not punitive. Garcia, 51
Fla. L. Weekly D1820, at *9–11; Simmons, 753 So. 2d at 763; Freeland, 832
So. 2d at 923; Givens, 851 So. 2d at 814–15. The 2007 amendment changed
a threshold condition governing when a registrant may invoke the statutory
removal procedure. It didn’t increase Hernandez’s criminal sentence, attach
a new punishment to his prior conduct, or alter the penalty for his underlying
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offenses. In other words, the amendment may apply so long as it doesn’t
impair a vested right. See Laforet, 658 So. 2d at 61. And it doesn’t. A vested
right is an immediate, fixed right of present or future enjoyment, not a mere
expectation that existing law will remain unchanged and that the beneficiary
will meet all the conditions in the future to enjoy such expectation. Clausell
v. Hobart Corp., 515 So. 2d 1275, 1276 (Fla. 1987). A statutory claim
becomes vested when it accrues. Williams v. Am. Optical Corp., 985 So. 2d
23, 27 (Fla. 4th DCA 2008), aff’d sub nom. Am. Optical Corp. v. Spiewak, 73
So. 3d 120 (Fla. 2011). An expectant and contingent interest under an
existing statute doesn’t become vested merely because the events that
might someday satisfy the statute have begun. See R.A.M. of S. Fla., Inc. v.
WCI Cmtys., Inc., 869 So. 2d 1210, 1217–18 (Fla. 2d DCA 2004).
When the amendment took effect in July 2007, Hernandez had been
released from sanctions for only about five years. At the time, he couldn’t
petition for removal under either version of the statute. His future eligibility
also remained contingent on avoiding arrest for any felony or misdemeanor
and satisfying the statute’s other requirements. Hernandez therefore
possessed neither a present right to petition nor a fixed right to future relief.
At most, he expected that, if the law remained unchanged and if he later
satisfied every statutory condition, he could ask a court to exercise its
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discretion. That expectation wasn’t vested. See Clausell, 515 So. 2d at 1276;
Garcia, 51 Fla. L. Weekly D1820, at *10–11.
Hernandez characterizes the amendment as retroactively “moving the
finish line.” But the Legislature didn’t withdraw an accrued claim or disturb
an existing entitlement to relief. It changed an eligibility condition years
before Hernandez could satisfy the former condition. Accord In re Hall, 768
S.E.2d 39, 43–44 (N.C. Ct. App. 2014) (applying an extended registration
period where the registrant wasn’t eligible to petition before the amendment).
Because no vested right intervened, the 25-year requirement in effect when
Hernandez filed his petition governs.
IV
Section 943.0435(11) establishes the threshold requirements a
registrant must satisfy before the trial court may consider discretionary
removal. Hernandez had not been released from confinement, supervision,
or sanction for 25 years when he filed his petition. He was therefore ineligible
for removal under the governing statute. Accordingly, we reverse the order
granting the petition and remand with instructions to deny the petition and
restore Hernandez to the sexual-offender registry, without prejudice to any
petition he may file upon satisfying the requirements of the statute then in
effect.
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Reversed and remanded with instructions.
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