Great case: No duty to register if not “released from the sanction for conviction”
An excellent case came out of Florida’s 2nd District Court of Appeals last week!
An individual who had been charged with a Failure to Register (FTR) had his charges thrown out by the Trial Court (and the Appeals court now agreed) because the statutory language of 943.0435 did not require he register.
You must read the order to get a full appreciation of the magnitude of this decision: Florida v. James
According to the language of the statute, one must be convicted of one of the enumerated crimes and (II) Has been released on or after October 1, 1997, from the sanction imposed for any conviction of an offense described in sub-sub-subparagraph (I). For purposes of sub-sub-subparagraph (I), a sanction imposed in this state or in any other jurisdiction includes, but is not limited to, a fine, probation, community control, parole, conditional release, control release, or incarceration in a state prison, federal prison, private correctional facility, or local detention facility.
James didn’t register, but argued that he wasn’t required to because he had not yet been released from the sanction imposed by his conviction – he still owed money.
This case is potentially ground-breaking for those who are still under sanction for their conviction.
More to come…
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Really just never understand florida: got taken in on a ftr was between here and new york at the time: state decided to file a no information and not pursue yet ended up on the list when corrections captain input me night i was taken in. Even lawyers couldnt figure it out and they will not expunge the arrest even though they didnt even file a charge.
Are you on in New York or Florida? After this decision, it would seem that if you were on in Florida, you just go in to a court and say I’m not required to register because I was never convicted even using the broad definition of conviction and the Florida statutes
So please explain this in laymen’s terms. Because it sounds familiar.A 1991 charge was 4 years probation.Got a technical violation got 7 Year prison term got out in 2001 been trouble free.Then got violated for not changing address on d.l. now going through courts.from 1991 when I was 18 in high school now I’m 47 and still going through it!!! Help
OMG THIS MAY BE AWESOME!!! i had the court place what remaining fine/costs onto me as a lien that has never been paid. maybe i won the lottery!!!
According to this holding, those of us from out of state who left Florida on probation after being sentenced shouldnt have been placed on the registry in the first place?
.. according to this holding “sex offenders” don’t go on the registry until AFTER they are released from supervision and all sanctions.
This could indeed be huge, if I’m reading this correctly.
FL legislature will fix this, won’t they? And in almost any SO case, registration’s also required by judgment orders (not just statute), right?
I mean, it’s not like we’ll get to a point where, say, a court orders the state to remove parolees from the registry (will we?).
Cases like this one fuel the imagination.
Jacob may have a point. HOWEVER, if the law is “fixed” it will be because of a law from 2020 so it would not apply to you as it would be ex-post-facto. WINNING!
The entire statute is ex post facto, including its amendments, so presumably the fix would be ex post facto as well. Though I would love to be wrong on this.
Ex post facto is confusing because it does not apply to civil regulatory measures, which is how registration is considered. Until the U.S. Supreme Court rules that registration constitutes punishment–which would open the door to ex post facto and 8th Amendment analysis– states can make just about any rules they like as a “public safety” scheme.
Encouragingly, we are seeing some cracks in the “not punishment” wall in both state and federal courts. One day the SC will accept a case allowing it to revisit its 2003 Smith v. Doe decision that started this mess.
Well said.
I challenge anyone to name one other “Civil regulation” that results in a person going to prison? I know it is preaching to the Choir but this is one of those “Look away and pretend you don’t see them” situations.
Some super rich people walk past a smelly homeless person and they are revolted they came near them so they look away and walk faster. The courts are doing that to us.
Also when you make regulations, how can you say “Ok only white people have to obey this, only women have to do this, only LGBT people have to follow this rule”. Why isn’t there a registry for robbers, car jackers, drug dealers etc.
Then there is the gun laws for convicted felons. That is where we need to look at each challenge to find the language that contradicts post sentence sanctions. Not being able to possess own a gun is an avoidance law when SO registry is a law where you have to give up your personal freedom 4 times a year forced to speak and incriminate yourself. There has to be a challenge already on the gun laws that would point to SO registry being punishment. Anyone following? I’ve looked but haven’t found it but I bet it’s there.
Not to mention that the penalties for registry violations often exceed those for the original crime requiring registration.
Confusing.