DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

MYRON J. MONTGOMERY,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D13-3757

[April 15, 2015]

Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St. 

Lucie County; Robert R. Makemson, Judge; L.T. Case No. 

562010CF002604AXXXX.

Carey Haughwout, Public Defender, and Gary Lee Caldwell, Assistant 

Public Defender, West Palm Beach, for appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Nancy Jack, 

Assistant Attorney General, West Palm Beach, for appellee.

DAMOORGIAN, C.J.

Myron J. Montgomery appeals the trial court’s final order designating 

him a sexual predator. We reverse.

Montgomery was charged with three counts of lewd or lascivious 

molestation on a victim under twelve and one count of child abuse. He 

entered a negotiated plea to child abuse and was sentenced to six years in 

the Department of Corrections as a habitual felony offender. The trial

court also designated Montgomery a sexual predator based on a prior

Pennsylvania conviction for rape by threat of forcible compulsion.

On appeal, Montgomery argues that the trial court erred in applying 

the sexual predator designation because the Florida statute governing 

sexual battery, section 794.011 of the Florida Statutes, is narrower in 

scope than the Pennsylvania statute governing rape by threat of forcible 

compulsion, section 3121(2) of the Pennsylvania Consolidated Statutes. 

The State counters that the two statutes are analogous even though the 

Pennsylvania law offers several alternative methods for violating the 
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statute. The State also argues that the trial court can consider the facts 

underlying the foreign conviction, which suggest that “force or violence 

likely to cause serious personal injury” was involved. We reject the State’s 

arguments.

The issue in this case is whether Montgomery qualifies for a sexual 

predator designation by virtue of his Pennsylvania conviction for rape by 

threat of forcible compulsion. “The interpretation of a statute is a purely 

legal matter and therefore subject to the de novo standard of review.” 

Kephart v. Hadi, 932 So. 2d 1086, 1089 (Fla. 2006).

Montgomery is eligible for a sexual predator designation if the 

Pennsylvania law he was convicted of violating is similar to one of the 

enumerated Florida laws that qualify for the designation. See

§ 775.21(4), Fla. Stat. (2012). Here, the trial court concluded that 

Montgomery’s conviction for violating section 3121(2) of the Pennsylvania 

Consolidated Statutes (1994) was similar to a violation of section 

794.011(4)(b), Florida Statutes (1993). Thus, our analysis requires us to 

compare these two statutes.

Section 3121(2) of the Pennsylvania Consolidated Statutes provides 

that:

A person commits a felony of the first degree when he engages 

in sexual intercourse with another person not his spouse

. . . 

(2) by threat of forcible compulsion that would prevent 

resistance by a person of reasonable resolution;

18 Pa. Cons. Stat. § 3121(2) (1994). However, under section 794.011(4)(b), 

Florida Statutes:

(4) A person who commits sexual battery upon a person 12 

years of age or older without that person’s consent, under 

any of the following circumstances, commits a felony of the 

first degree . . . 

. . .

(b) When the offender coerces the victim to submit by 

threatening to use force or violence likely to cause 

serious personal injury on the victim, and the 
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victim reasonably believes that the offender has 

the present ability to execute the threat.

§ 794.011(4)(b), Fla. Stat. (1993).

Our comparison of these statutes leads us to the inescapable 

conclusion that section 3121(2) of the Pennsylvania Consolidated Statutes 

is not similar to section 794.011(4)(b), Florida Statutes. Montgomery 

correctly points out that the Florida statute is narrower in scope than the 

Pennsylvania statute. It requires coercion by threatening to use “force or 

violence likely to cause serious personal injury” as well as proof of the 

victim’s reasonable belief in the offender’s ability to carry out the threat. § 

794.011(4)(b), Fla. Stat. (1993). The Pennsylvania statute merely requires 

“forcible compulsion that would prevent resistance by a person of 

reasonable resolution.” 18 Pa. Cons. Stat. § 3121(2) (1994). Forcible 

compulsion “includes not only physical force or violence but also moral, 

psychological or intellectual force used to compel a person to engage in 

sexual intercourse against that person’s will.” Commonwealth v. Rhodes, 

510 A.2d 1217, 1226 (Pa. 1986) (emphasis added). Thus, a defendant does 

not necessarily need to threaten “force or violence likely to cause serious 

personal injury” to violate the Pennsylvania statute. Moreover, unlike the 

Florida statute, the Pennsylvania statute does not require the state to

establish the victim’s reasonable belief in the defendant’s ability to carry 

out the threat.

Additionally, the Florida Legislature drew a distinction between sexual 

battery on a person over twelve which involves coercion by threatening “to 

use force or violence likely to cause serious personal injury,” 

§ 794.011(4)(b), Fla. Stat. (1993), and sexual battery on a person over 

twelve that does not involve “physical force and violence likely to cause 

serious personal injury,” § 794.011(5), Fla. Stat. (1993).1 The former 

offense, which the trial court deemed similar to the Pennsylvania statute, 

is a first degree felony that triggers the sexual predator designation 

whereas the latter offense is a second degree felony which does not. 

Compare § 794.011(4)(b), Fla. Stat. (1993), with § 794.011(5), Fla. Stat.

(1993). Based on the broad definition of “forcible compulsion,” the 

Pennsylvania statute is similar to both provisions and, thus, cannot 

definitively qualify Montgomery for a sexual predator designation. See 

Durant v. State, 94 So. 3d 669, 671–72 (Fla. 5th DCA 2012) (reversing 

1 “A person who commits sexual battery upon a person 12 years of age or 

older, without that person’s consent, and in the process thereof does not use 

physical force and violence likely to cause serious personal injury commits a felony 

of the second degree.” § 794.011(5), Fla. Stat. (1993) (emphasis added).
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dangerous felony sexual offender designation because statute defendant 

was convicted of violating not only contained elements similar to statute 

that qualified for the designation, but also had elements similar to another 

statute that did not qualify for the designation).

In determining that Montgomery’s Pennsylvania conviction does not 

qualify him for a sexual predator designation, we also reject the State’s 

argument that the trial court may look to the underlying facts of the 

qualifying offense to establish whether two laws are similar. Section 

775.21(4) expressly refers to “a similar law of another jurisdiction,” as 

opposed to similar conduct. See § 775.21(4), Fla. Stat. (2012) (emphasis 

added). If the legislature intended for courts to look to the underlying facts 

of the foreign conviction, it would have expressed that intent in the statute. 

See State v. Hearns, 961 So. 2d 211, 219 (Fla. 2007) (“Under the canon of 

statutory construction expressio unius est exclusio alterius, the mention of 

one thing implies the exclusion of another.”) (citing Young v. Progressive 

Se. Ins. Co., 753 So. 2d 80, 85 (Fla. 2000)). Additionally, no Florida court 

has looked to the underlying facts of a foreign conviction to satisfy the 

similarity test. See, e.g., Fike v, State, 63 So. 3d 847, 848–49 (Fla. 5th 

DCA 2011) (holding that defendant’s Michigan conviction did not qualify 

him for sexual predator designation without considering the underlying 

facts); see also Dautel v. State, 658 So. 2d 88, 89 (Fla. 1995) (“[O]nly the 

elements of the out-of-state crime should be considered in determining 

whether that conviction is analogous to a Florida statute for the purpose 

of calculating points for a sentencing guidelines scoresheet.”). Without 

considering the facts underlying Montgomery’s Pennsylvania conviction, 

we cannot conclude that he violated “a similar law of another jurisdiction.” 

Accordingly, we hold that the trial court erred in designating Montgomery 

a sexual predator based on his Pennsylvania conviction.

Reversed and remanded with instructions for trial court to remove sexual 

predator designation.

CONNER and FORST, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.