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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It’s very confusing. My son was required to register within hours of walking out of the courthouse. He was on probation and of course had plenty of fines. So this is saying that he didn’t have to register then? Am I understanding this correctly?
So I read this but also clicked on the link to read the courts order. According to what they are saying, since I was still on probation in 1997, I should not have been put on the sex offender list because I had not been released from sanctions? I mean that is plain as day.
So not only was I ex post Facto-ed in but they added me when I should not have been. Double whammy.
I’m guessing Princess Lauren will interrupt her quarantine imposed Twilight marathon and whine to her daddy to fire the trial judge that originally ruled and close the appellate court that upheld it. Big Daddy Ron, after buying her something shiny and new, will then write another bill in her name “fixing” that particular statute and likely making it retroactive, adding another issue to FAC’s ex post facto challenge.
Who wants to start a betting pool on how many times Princess Lauren says “I’m a sexual assault survivor” when it hits the assembly floor?
All they have to do is change a few words in the statute. I don’t think Lauren will encounter any resistance from her colleagues on this. It might not even be debated.
I had to read it many times. It seems like a wow. So let’s say it is as good as it appears. But then the legislature comes along and fixes that. Would/should those up to that point, of the fix, fall under ex post facto and still have an out?
Unquestionably they will try to “fix” this, but in the mean time this is SIGNIFICANT
As is obvious to all, the “loophole” will be fixed quickly by the legislature. My question is what happens to all the people who received a conviction for FTR? Can they now file to have the conviction vacated either through some state procedure or a federal motion under 28 USC 2254? It seems they all have a valid case of “actual innocence” because what they did, i.e. not registering, was not unlawful.
Good question and in the 2nd Circuit – if you got an FTR, I’d certainly be speaking to your attorney.
Is this binding precedent in that state circuit only?
It is, it’s persuasive elsewhere.
If nothing else, it proves there are judges who actually believe in the law and what it stands for. Not just letting your feelings get in the way of your decision making.
That advice is important for those in other circuits with an FTR conviction. First, you might just win and set the precedent in other circuits. If you lose, that sets up a “circuit split” which only the state SC can resolve. As soon as the legislature rewrites the law, all those without an FTR conviction will lose standing to challenge the law, but those with FTR convictions or pending indictments will not. Federal courts have taken a dim view on convictions for actions that were not criminal.
This decision addresses the plain language of the law, not merely a judge’s perspective on some implementation nuance. The legislature simply blew it with that particular wording. All a judge really can do is to presume that is what the legislature intended.
My judge gave me the option to petition out of probation in the near future. In light of this ruling, I am tempted to say, “no thanks! I love probation! Remove me from the registry!”
I realize, of course, that this would be an easy fix for the legislature, who won’t let this go uncorrected if the ruling is upheld.
First the Penthouse thing and now this? Is the 2nd DCA getting a bit uppity?