On November 16, 2022, a registered person won an order to be removed from the registry (State of Florida v. David Whitehead F95-37823) after 20 years in the state of Florida, beating the 2007 amendment, as the judge in the case said it was punitive in nature and could not be applied retroactively.
The state then appealed the decision.
The appellate court ruled on March 20, 2024, to affirm the November 16, 2022, decision with the whole appellate court reaching a decision without an opinion. This virtually makes it non appealable to a higher court. Most supreme court cases will not be picked up if it is an appeal without an opinion.
To summarize, the registered citizen was removed from the registry after 20 years, with the 2007 law mandating a 25-years waiting period being found to not be applicable in his case as the provision was deemed punitive and cannot be applied retroactively. The state appealed and lost.
Florida Action Committee is grateful for the work that Attorney Ron Kleiner has put into this case.
Psalms 91:
You might have better luck changing states rather than changing the law. It seems that if your case was dismissed that you wouldn’t be required to register in a lot of states because most states require a conviction.
I had posted previously on another post in which I was “on hold” awaiting the decision that clears the way for me to petition for removal.
Funny story (or sad) depending on my mood….I contacted Ron Kleiner about getting the process started. He pulled my FDLE Background Check and of course, I have been free of incident since 1996 and he tells me I have a misdemeanor arrest in 2013 (which is most certainly not mine) and now I am having to figure out what to do to get this removed off of my records so I can then proceed with the possibility of removal.
I would say one step forward and two steps back, but we will see where this rollercoaster continues to take me.
It’s been a total of 33 years since my initial arrest to current date. I honestly just want to get this over with and be off the registry for however long I have left of life.
So thank you to Ron Kleiner for getting registrants this victory. Hopefully the momentum with the recent decisions will continue to our benefit.
Hopefully you can get the mistaken misdemeanor removed from your record so you can precede. Did Ron give you an idea how to address the mistake?
Hello . New resident of Florida , as of July 2023.my husband Had a case in Pa and was on registry until 2022. All restrictions and registration was completed January of 2022. My husband , father in law and I moved to Florida and were visited by a sheriff stating he would need to register for life here ! How can a state that didn’t have anything to do with the case , punish him ? We were nowhere near Florida when charged or had the case completed . I don’t understand how another state can impose punishment , by restricting travel, making someone register again , and having sheriff do residence verifications. He is in compliance with FDLE and has done what he needed to do however these punishments are unconstitutional . He completed his punishment in PA . Does a convicted murderer have to register in Florida if the crime didn’t occur here and they were released from restrictions in another state ? I don’t understand this at all .
If you haven’t already, I’d contact a lawyer. They hopefully will provide some answers. I would especially look for those who deal with registrants. I hope that he can break free from Florida’s registry.
My probation ended August 2003 my 20 year mark was August 2023. I had a notice to appear arrest in November 2022 nine months before my 20 year mark was up misdemeanor. The charge was later dismissed because of diversion Program here in Florida so at the end I was not prosecuted, but my charge was dismissed. I heard from an attorney that would disqualify me from petitioning the court now. Nine months before my 20 year mark up and also it was dismissed. I know life is not fair, but I am willing to do something to fight legislation to change the verbiage. Any suggestions? Fac family?
Will a misdemeanor arrest that was later dismissed disqualify me forever from petitioning the court for removal from registry? Thanks
I’d recommend reaching out to Ron Kleiner via email or phone and ask him.
https://kleinerlawfirm.com/
Thank you
Good morning to you all. Well, the rabbit hole continues to expand exponentially. I finally mustered the courage to go and get fingerprinted by the arresting agency which is the Miami Dade Sheriff’s Office/PD. They were courteous and respectful and they told me that those are my prints. O.O
Again, I have not been arrested since 1996, so I decided to go home and go through my registration forms that I keep just in case. The same day of my arrest, I registered and have the receipt. That is a big coincidence. I also recall at one point back in the day, they had re-fingerprinted me.
I went to the Miami Dade Clerk of the Courts. They did a clerk certified record search and that arrest does not exist on their end.
I then reached out to the FDLE and they suggested that I fill out and send to them the Personal Review of Florida Criminal History Record. I am going today to get a hard copy fingerprint card from the Miami Dade Police Department to then mail to the FDLE along with all supporting documentation to the Criminal History Records Maintenance Section. The process takes anywhere from 30-45 business days to complete. Hopefully, they can finally decipher this riddle.
Just wanted to keep you all informed on the progress. I am hoping to be able to petition the court on my birthday which is in 3 months.
*fingers crossed
Thanks for the update. It sounds like you may get this worked out and off the dreaded list.
20+ Years:
With all of the expense and no guarantee of success after many months, I would just relocate to state that doesn’t require you to register.
The fingerprints and criminal history are required for a name change, but not to be taken off the registry, I’m almost positive.
@ 20+ years
I have seen a lot of cases where someone had someone else’s charges put on their record. This happens more when you have a common name like John Brown or Karen Rogers etc.
Even though you would hate to spend the extra money, I would hire a lawyer to prove that charge is not yours and get it removed so you can go forward. On one of my documents I was reading from the courts, they have my name spelled wrong.
Wishing you well and praying you are able to expose the truth about the false charge.
John 8:32: “And you will know the truth, and the truth will set you free.”
This is a huge win – probably the biggest victory against the registry Florida.
The sad part is, even though the registry is labeled as “non punitive” being removed is not automatic. Many who have been in prison have never recovered their lives and live paycheck to paycheck. Many cannot afford an attorney and since it is not considered criminal, a public defender cannot (Or won’t) represent you.
Petition for removal is not a sure thing, but this ruling makes it a bit more easier as the challenges to removal have been addressed by Florida’s highest court. So even if you pay a lawyer $15,000, that is no guarantee you will win, which applies to basically any court hearing, criminal or civil.
We all agree that with such a ruling, we that have not had any new arrests, should automatically be removed. Unfortunately, the courts left that part up to us, which is weird as they did mention parts of it is punitive for those of us who were the original group in 1997 up to a certain point.
I have been looking for loopholes for years but many of the judges seem to wear earplugs when hearing registry related hearings.
Cherokeejack you are so correct! SITUATION-on registry 1987 (2 months before probation ended)-went thru 1 year clemency investigation and had civil rights restored therefore removed from registry in 1989 by florida statute §943.0435(11) (1998). Fast forward 23years -2022 FDLE demands re-register due to newer statutes. AND threatened with jail if do not move from home of 35 years (local ordinance distance violation). Local judge refuses 2X to even allow a hearing. Zero arrests or even suspicions of anything -it’s a witch hunt!! I do believe this is a one of a kind case where removed by statute then forced to re-register when the laws changed. Would love to know if there are others out there in this situation.
I find this ruling both encouraging:
“21. The Court thus finds that the 2007 Amendment to Florida Statutes §943.0435 is a substantive change which cannot be applied retroactively against Defendant, who was placed on the sex offender registry prior to its enactment.”
…and disturbing:
“7. Defendant brought his Petition under the 2002 version of §943.0435 (11) which was in effect on the date he completed probation, and his twenty—year period began to run.”
Does this mean even though you were placed on the sex offender registry prior to 2007, you still fall under the 25 year tolling period if you didn’t complete your probation prior to 2007?
To a layman like myself, it seems contradictory and confusing.
Yes, I believe so.
Your time starts when you are free from sanctions and, unless your sanctions ended before 2007, sadly, you would fall under the 25-year rule as I understand it but PLEASE reach out to Ron (https://kleinerlawfirm.com/). His consultations are free and he is not going to get your hopes up if he can’t help. Getting legal advice from a forum is not your best strategy. Good luck!
Since some of us is discussing what of scenarios, if I recall there was a recent case where someone who was on probation did not have to start the registration until they were finished with probation. Unfortunately I am in the 25 year removal rule but started the registration when first sentenced. Do some of you see it as an issue down the line and when asking a judge to be removed that a judge may say Mr ….. “Your 25 years is not here yet you need to wait another 3-5 years that you can request to be removed since you were supposed to start registration at this time not when you were first sentenced?
The time (20-25 years) starts running once you are off of sanctions, including probation – not when your probation starts. Also, the provision only includes some (not all) sex offenses and you will be disqualified if you are arrested for anything over the 20-25 years that you are in the penalty box. To be considered (as I understand it) to be released after 20-years, your sanctions must have been completed by 2007
This is a great reference here https://floridaactioncommittee.org/member-submission-a-few-faqs-on-the-process-of-removal-from-florida-sex-offender-registry/
so if someone off sanctions is arrested 3 months after being off sanctions then after 20/25 years after being arrested i wounder if they can get off the hit list as its been 20/25 years that may be the next avenue mr. kliner could look at
Keep in mind, the removal is not automatic nor guaranteed. Even if you are right up there with Saint Christopher, the judge has the final say. And it, as I am lead to believe, no appeal on that. If you are denied, you have to wait until 25 years and again, if you cannot get off at 20, might not ever get removed.
It sucks being afraid to leave the house because I am eligible and dare not even throw a candy wrapper on the ground to catch a violation. Removal at 20 years should be automatic. We did our time then some. And not everyone is fortunate enough to afford an attorney. Win or lose, it takes a load of money to go to court for something like this.
So, it is true that according to the statute, if a person required to register meets all of the requirements, the judge “may grant or deny relief.” I have not seen any appellate cases on this yet, but I’m sure they will start coming now that many have passed their 20 year mark. So we will just have to wait and see on how appellate courts interpret that provision of the statute.
However, there is nothing in the statute that says that if the judge denies relief, you have to wait another 20 or 25 years. In fact, the statute specifically provides that “if the court denies the petition, the court may set a future date at which the sexual offender may again petition the court for relief, subject to the standards for relief provided in this subsection.”
So yes, it is all up to the judge. But there is no legal provision mandating another 20/25 year waiting period to submit another petition.
Thanks RM, let me clarify what I wrote, I think I typed faster that I think or vice versa LOL
Yes, if you got denied at 20, you had to wait until 5 years later at 25 years because a judge had moved the date. The case was won so it is 20 now, but honestly, I am not sure how long you would have to wait to try again. That is something I will discuss with the lawyer. That opens a whole other can of worms.
Having said that, if you save up a lifetime of money and get denied, most of us could never save that much again so we would be screwed. It took me 20 years to save the money for me to try and get removed.
The supreme court doesn’t pick up an appeal without an option? With the logic of man its confusing about these corrupt courts of law. Appeals with an option or without an option sounds like man’s unethical logic. Everything is good if used in the right way these registry laws are unethical. One either makes a decision or a choice as in many of these registry situations.
Holding someone past their probation or time served is as unjust as in the slave trade was back in the 18 hundreds. Many of these operations are hypothetical and punitive in many ways to trap another or hold them on a lifetime basis for any length of time. Talk about fool me once shame on you, Fool me twice shame on me
I’d like to know that, too. I was placed on probation from 2002 to 2009 and was on the SO Registry during that entire probation period. Half of my probation was administrative probation as the judge removed me from SO probation halfway thru. And when I was sentenced the mandatory term was 20 years.
Peter
I have been registered since its inception in 1997 in Florida. Applied retroactively since no registry when I was arrested or when sentenced.
I am a little lost on the logic. If the State will rule being on the registry an additional 5 years is punative, how were the original 20 years not punative and as such, ex post facto would apply to all registry changes made since its inception.
Bob is your uncle. That is correct logic but it seems like logic escapes this process. If one law adding a further restriction ie 5 years wouldnt it stand to reason that any addition to the original law would be punitive? Seems logical to me.
I think it was based on the judge that ruled 20 years is long enough and then another judge said it is 25. The court was willing to say 20 was enough but not to rule the registry can be thrown in a septic tank where it belongs.
It would be great if someone could post the trial court’s order so we can see the basis of the decision.
The trial court’s order is in the first link along with the record and pleadings.
Kyle,
The original Order in Whitehead is superscripted above
Thanks for all your efforts Ron. You are now a celebrity.
Don’t know you Ron, but you are a Saint! Thank you for being so brave.
I will see what I can do, Kyle, but don’t hold your breath on my obtaining it.
Alan
Take the win. You can have one piece of candy but not the entire bag. We still get a candy, just not the entire bag.
In the meantime, I am leaving it up to God, His warriors, Ron, FAC and others that put the work into action.
Ron fought for all of us and am sure he is not done. Not too many going to notice a few people getting off the registry at 20 years. But once someone challenges the entire registry, that is when the courts have a hissy fit.
Well done on the appeal, Ron!
Bio
I second the motion
I appreciate what Ron has done. So, what if an offender was convicted in 2004 and sentenced to 10 years probation but registered the entire time he was on probation. Based on the Second DCA holding in State v. Crose, he was not required to register while on probation. Shouldn’t the 10 years he registered while on probation, but was not required to, be credited so that he could petition for removal under the old 20 year removal statute?
Good question, reach out to Ron and ask him.
It’s seems the key here is when the court said the law was punitive.
This looks awfully persuasive for our 2 ex post facto cases. Hopefully the 2 judges of those cases see this ruling.
If you can people donate to day so we can continue to fight against this corrupt system.
Prior to 2007, 943.0435(11) provided an opportunity to petition for relief after 20 years without subsequent arrest. In 2007, the State moved the finish line to 25 years and added a bunch of offenses that would render someone never able to petition for removal.
https://floridaactioncommittee.org/florida-cant-move-the-finish-line-on-removal/
This will be binding precedent in the Florida 3rd DCA and persuasive authority in other Florida judicial districts.
That’s good news for many I’d guess. I had one technical registry violation over 20 years ago. That one arrest keeps me from being removed even tho it was a technical violation and not anew charge. Un Fn believable
You might want to contact Ron Kleiner on your situation. A few years ago, he was on a membership call and said that sometimes a person can still get relief even with a technical violation. Contact info for him is at our site. I don’t know what the cost would be.
Well, Funny you should mention that. I was on that call and asked that question. I did do a petition with Ron that we withdrew because of the technical violation. I have the time, but the one violation seems to be the road block.
No two cases are the same or necessarily have the same outcome.
That’s true. But 30 years if being beaten down by the state has me a little convinced things will probably not changed for me. I hate to be negative. But all the state has ever done in punish me more and more as the years go by.
Pariah
I will be praying for you and all of us. I wish the Supreme court would have the balls to state the truth that any registry is punishment and especially when applied retroactively.
The statute specifically states that a petition can be filed and relief can be granted if the petitioner “has not been arrested for any felony or misdemeanor offense since release.” First, release is defined in the same statute as the expiration of all sanctions, including probation. Second, an arrest for a technical violation of probation (and not a new crime) is not an arrest for a “felony or misdemeanor offense.” The Legislature could have said “any arrest” or “arrested for any reason,” but it specifically said for a felony or misdemeanor offense, and after release. By definition, a technical probation violation is not an arrest for a felony or misdemeanor offense, nor is it an arrest after release. I’m not sure I agree with your attorney on this (note: I’m not an attorney), but the law is clear and to my knowledge there have been no appellate cases on this matter, so it would be a matter of first impression if appealed.
The “technical violation” at issue is for failure to register, which is a 3rd degree felony, and hence disqualifying by definition.
I got hit with that but they filed a no infor mation so it went nowhere. Not the dropped charges it was Charges never even filed Never even got arraigned. Im out of state and federal. Level 1 in ny only because they changed law and needed to classify. Was actually not any level. My home state was non public and i was removed from it. Now stupidly im on this one in florida. Offence: 27 years ago. Never went to jail, just got a quiet probation. All good…… until i came here. Sux
JM
Well damn, now I don’t feel so bad. I feel for you buddy. Each of us has a story and how the registry impacts us and our families.
I have had doctor’s send me letters not explaining why, but stating they will no longer be able to provide care for me. Well we all know why. I looked at my chart once when the doctor had stepped out and there was a notation in my chart about me being an offender. Really? What happened to the oath to care for all patients?
Pariah
Don’t think for a minute that was not on purpose. They (Judges, lawmakers etc) will do whatever it takes for us to be punished even unto death. IE: Dead people still on the registry.
Even when off of registry, our mugs shots stay on those websites for arrests, but I will take the win in any form we can get.
Just had a church tell me i cant be there. Even though im always with my
Family never alone. Have no restrictions as it was pre 1997.
Sorry to hear that. I hope that you can find a more welcoming church community.
Didnt think they could do that. Really sux.