State Registry Rules Aren’t Federal SORNA Rules
A recent decision from the U.S. Court of Appeals for the Third Circuit is a good reminder that there are actually two different registration systems that people need to understand: state requirements and federal SORNA requirements. A state has it’s own set of laws (including duration and how often you have to report) and the feds have different rules.
Now before you ask how this matters in Florida, well, it really doesn’t. Florida is one of the few states that are “SORNA compliant” and, in fact, the requirements in Florida far exceed the requirements under SORNA in most respects. Duration of registration is perhaps the most relevant. Under SORNA, only “Tier III” offenders register for life. In Florida everyone on the registry has a lifetime requirement. But for people in other states or for people who travel often, which federal tier you fall under becomes much more relevant. For example, if you live in a State that has a 10 year registration duration and you think you are done after 10 years, then travel from one state to another without registering, you may still get prosecuted federally.
In Summers, the defendant committed an offense in New York and then moved to New Jersey and failed to register. He was prosecuted federally. As part of his prosecution, he challenged the District Court’s determination regarding his placement in SORNA Tier III. The government tried to argue that his challenge was moot because his prosecution was over and he was out of jail. The District Court disagreed in one respect, and the 3rd Circuit agreed with the District Court, “The District Court’s determination regarding SORNA Tier III has ongoing consequences despite the fact that Defendant is out of jail. Based on the District Court’s determination, SORNA requires him to register as a sex offender for the rest of his life and to appear in person to verify his registration every three months. See 34 U.S.C. §§ 20915(a)(3), 20918(3). A decision in Defendant’s favor could result in direct relief from some or all of those consequences.”
The 3rd Circuit, nevertheless, found that he was a Tier III, but the important takeaways are (1) court’s decision about his federal Tier III classification – finding that this determination is not moot once the prosecution ends, and (2) for registrants, it’s important to understand the distinction between state law and federal law. It is also important to become very familiar with the obligations under both (even if your underlying offense was not a federal offense) and become very familiar with the requirements of each state you travel to (for example, many of our members were removed from their state of conviction, then moved to Florida and found they had to register again).
SORNA establishes federal registration requirements and its own classification system. The federal tiers can determine how long registration lasts and how frequently a person must report in person. But states don’t all implement registration requirements in exactly the same way. A person may be subject to one set of requirements under the law of the state where they live and a different set of requirements under federal SORNA. A state’s determination that someone is not required to register under that state’s law does not necessarily mean the person is outside the reach of federal SORNA. And the reverse is important too: complying with a state’s registration requirements doesn’t necessarily mean every federal SORNA obligation has been satisfied. Since SORNA contains a federal criminal enforcement mechanism and a person who is required to register under SORNA and knowingly fails to register or update a registration as required can potentially face federal prosecution — even when the underlying registration requirements and procedures vary from state to state.
The Summers case is a good example of how complicated this can become and a reminder for anyone who was thinking of leaving Florida to move to Michigan (after their recent victory).
United States v. Summers – 3rd Cir
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Can we in the state of Florida apply for a tier system that would help release many people from the registry and give tier 2 tier 3 registry hope for legislative change in the future
There is no such application, unfortunately. It will all come down to the legislators adopting it. If you would like to become involved in that effort, write to [email protected] and ask to be forwarded to the legislative committee.
The statement in this article that Federal SORNA “doesn’t matter” for Florida registrants is untrue. My offense (F.S. 794.05(1)) qualifies as Federal SORNA Tier II, which means I had an independent duty to register under Federal SORNA for 25 years from my date of release as defined by Federal SORNA, which was April 27, 1999. My federal independent duty to register under Federal SORNA has therefore expired, and I am no longer subject to its provisions, regardless of what Florida or any other state makes me do.
So, given that I still have to register in Florida, why does this matter? It matters a lot, because I am not subject to federal prosecution for failing to register under federal law, which has more severe penalties than the Florida third degree felony. It also has significant ramifications for my ability to travel both domestically and internationally, especially if I leave Florida and go to another state (many of which would not require me to register based either on my offense, how long it has been since it was committed and probation completed, or a combination of both).
Agreed. You are 100% correct in that respect. From a practical perspective, when it comes to “registering” you would still need to register domestic/international travel under Florida’s laws, but that would not apply if you moved out of Florida. Your point that you are no longer subject to enforcement under SORNA is well taken and correct. Anyone who is a Tier I (Federal) and has passed 15 years (or petitioned successfully after 10) or 25 years as a Tier II would not have to worry about federal prosecution.
Regarding the “or petitioned successfully after 10”— do we know whether any Florida registrant has ever bothered to file such a petition? And/or whether any of the FAC-referred attorneys have ever filed one?
My offense would fit the Federal definition of Tier I, and I now have over 10 years’ registration under my belt. The first attorney I spoke to regarding such a petition did not view it as much of a priority since I am not immediately relocating from Florida. But gosh, it does seem to lift one burden on interstate travel!
Yes and yes. But removal of the federal requirement will not alleviate your requirements under Florida Law.
Whom do we know has handled these? I’m guessing Ron Kleiner?
Indeed. But if you remain in Florida, you’d still be subject to Florida laws. You’d have to weigh the cost/benefit of such a petition.
I applied for Clemency in Florida, has anyone else applied, and how long does it take. I want my constitutional rights back.
Mine was a federal conviction in 2013 (military). Restricted to base 4 months, no probation. I was never told anything by anyone about federal sorna, didnt even know it existed til few years after I retired. Had to register in Florida and person registering me was a fill in guy, was clueless. Didn’t even use my last name on my cyber login (1st initial and middle name).
So, no idea what sorna level I would be, but doesnt matter I guess since Florida condemns all of us to a life sentence anyways…
No hope is hard to live with.
Does sorna still apply if someone were pardoned as opposed to just removed from the registry or does one need to apply for removal from the federal registry as well? Is that even a thing?
I’m still a bit lost on what to do once I move to Michigan. I am planning the move currently. Am I supposed to legally do anything when I get there, or just move there after notifying Florida that I’m moving there? 2000 offense date/2001 conviction with adjudication withheld and a clean record besides some traffic citations since then.
Also, is there a way to find out what tier we are within SORNA system? Even though the tier system is not used in FL, we are designated a tier number, and mine is tier 1. For anyone curious what theirs is, it’s part of your username on your verification papers in the top right corner ie jdoe1, jdoe2, jdoe3. That number at the end is your tier in FL.
There are no Tiers in Florida.
It would be prudent to consult with an attorney in Michigan to see what rules (if any) would apply to your individual circumstances.
OK, thank you. As for the tiers, that number was explained to the Custer county sheriff in Nebraska and myself by FDLE. They said that it doesn’t apply here in FL and that it is moot, but that is the tier that we would be if it was actually used. I have only seen 1 and 3 at this point, but they did say there are registrants with a 2. No, legally we don’t have a tier system, but for some reason we have them logistically. Maybe they do it for SORNA reasons?
Although Florida does not call them “tiers,” Florida does, in practice, operate a three tier (or three “category” — call it what you like) system. Persons designated “sexual predators” are so designated for life with no possibility of removal and are subject to additional restrictions that “offenders” are not. They must register in person four times per year. There are two “categories” of persons required to register as “sexual offenders”: those who must do so four times per year for life with no possibility of removal, and those who must do so twice per year for live but can petition for relief after 25 years from “release” as defined by Florida law under specific circumstances. These are three clearly distinct categories with major practical differences for those impacted by them. If Florida suddenly decided to call the categories Tiers III, II, and I, little would change other than the additional stigma imposed by the term “predator” (which is, of course, itself significant).
If Florida were to mirror the federal SORNA with respect to duration of registration, registration would terminate as a matter of law after 15 years (Tier I) or after 25 years (Tier II), instead of having to petition after 25 years (for both Tier I and Tier II). If Florida were to mirror SORNA with respect to registration frequency, Tier I offenders would appear in person annually (for 15 years), and Tier II offenders would appear semi-annually (every 6 months – for 25 years).
In 2007, Florida Amended the registration statute (Ch. 2007-209, § 15, Laws of Fla.), presumably to conform to the Adam Walsh Act, except they made it harsher. With respect to duration, someone who would be a Federal Tier I has to remain on as if they were a Tier II. With respect to frequency of in-person registration, someone who would be a Federal Tier II now had to report as if they were a Tier III.
It’s not so much what we call it, but the practical effect. Florida does have categories but the categories don’t mirror federal requirements. That’s why its important to be aware of both sets of rules.