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…
Discover more from Florida Action Committee (FAC)
Subscribe to get the latest posts sent to your email.
What if adjudication was withheld no conviction 1992 released from probation 2000
if you have been released from probation and not had any subsequent arrests, contact [email protected]
Is state appealing this to FL S.Ct. or are they letting it stand?
Any other circuits use this yet?
They first asked for (and were granted) a rehearing.
04/15/2020 Affirmed – Authored Opinion
04/27/2020 Notice of Appearance Kevin A. Golembiewski, Esq. 1002339
04/27/2020 Notice of Appearance Amit Agarwal, Esq. 125637
04/27/2020 Motion for Extension of Time Amit Agarwal, Esq. 125637 APPELLANT’S MOTION FOR EXTENSION OF TIME TO FILE MOTION FOR REHEARING AND REHEARING EN BANC
04/29/2020 Grant EOT (general)-74c Appellant’s motion for extension of time to file a motion for rehearing is granted. The motion for rehearing shall be filed on or before May 30, 2020.
05/21/2020 Motion To File Amicus Curi. Brief R. W. Evans, Esq. 198862 MOTION FOR LEAVE TO APPEAR AS AMICUS CURIAE
Here’s where this case is headed:
https://www.news-journalonline.com/opinion/20200508/donrsquot-let-sex-offenders-hide-from-registration–sheriff-rick-staly?template=ampart
“they are legally allowed to hide who they”
WTF are we hiding. Do they have proof we are continuing to offend?
Some people say “Once a cop, always a cop”. But, if you try and stop and shop lifter and yell “Stop I am a cop” you will probably be arrested because you are NO LONGER a cop.
In your heart you may still be a cop but that is up to how you feel. Do any of us in our heart still think we are sex offenders? If you do, then thanks for being honest but enjoy staying on the registry for the rest of your life and maybe afterwards.
I respect law enforcement but when Sheriffs start putting their personal feelings into situations , it is as bad as a judge sentencing you with their feelings instead of what they law says (How I got my sentenced shortened on appeal)
It seems because the court ruling mentioned ‘and all other jurisdictions’ this may indeed apply all across Florida as the Sherriff quoted in the article implies.
The question I have is: does the ‘fix’ become retro active since the law has been in place since 1997 and the laws intent does not matter to the court? Wouldn’t the ‘fix’ have to take place from the date it is adopted to begin?
Legislature will most certainly make the fix retroactive. Remember that they made virtually the entire registration law, and its amendments, retroactive, and will continue to do so until the court rules that it fails the balancing test for ex post facto punishment.
Another difference, anyone can just log onto the computer and within seconds be on the offender website for free.
Before that, if you wanted to see someone’s record, you had to go to the courthouse, fill out a form and pay a fee (You still do in my places to get records)
I do not care if someone wants to waste their day at the court house paying to look at my records because unless they are sealed, anyone can do so and have been able to do so for many decades. Unlike the registry where anyone without permission, fees or filling out any paperwork can view damning information about us that most likely is not even still relevant to our lives.
I might also note, that most of the people who have seen me on the registry and confronted me, do not even live in my neighborhood.
I have just spoken to our attorney in Polk County who said the case does NOT apply to my husband because he was correctly convicted of being a sex offender.
Now I am really confused as both the courts and the statute seems to specifically state otherwise.
Is my lawyer correct? Would love some comments on this.
Being “correctly convicted as a sex offender” has absolutely nothing to do with this ruling. So I have to admit to confusion over this attorney’s response as described here.
It’s hard to say more about it without knowing what the question was and how the attorney answered it specifically.
No one here is in a position to say the attorney’s wrong, of course, since we are not attorneys, are not qualified to provide legal advice, and do not do so on this site.
But we do share our personal impressions of rulings. And I suspect that a lot of attorneys are still struggling to guess the implications of this one.
Not sure there is a charge in the statues charging you as a sex offender since just being a sex offender is not a crime.
How can you be convicted of being a sex offender? Please send me that criminal code and statue stating you can be charged as a sex offender.
The designation of a person as a sexual offender is not a sentence or a punishment but is simply the status of the offender which is the result of a conviction for having committed certain crimes.
943.0435
Quoted from Florida statues Florida legislatures website
Now my opinion, HELL yeah that is a sentence
I am wondering if this decision will affect those of us who live in another state? I had to register in Florida while my wife and I were visiting relatives.
I would love to start a conversation with my follow transient citizens. Back in 2005 there was a disastrous decision out of the Eighth circuit court of appeal which found that there is no ‘liberty interest or “Right” to live where one wants’ and as such the US Supreme Court of the United States denied Certiorari.
It appears to me that the courts are split on the semantics of residency rights as found in Bolling V Sharpe, ‘1954 Although this Court has not assumed to define “LIBERTY” with any great precision, that term is not confined to mere freedom from bodily restraint. Liberty under the law extends to the full range of conduct which the individual is free to pursue, ( residency and employment opportunities) and can not be restricted except for a proper government objective.
The argument here is not whether or not one has the right to live where they want, the argument is whether there is a Liberty interest to change residencies without restriction, an agreement found both Sharpe and Dow V Alaska as affirmative.
My thread will lead into the Florida legislators intent to impose as punishment a residency restriction first enacted under 947.1405 (7)(a) Jan 1 1994, 948.30 effective on or after Oct 1 1995, 794.065 effective on or after Oct 1 2004. (One year prior to the Miller decision).
But right now this transient needs to register.