Can registering as a sex offender in Florida be delayed until completion of probation?
In State v Croce, the defendant successfully argued in a lower court that FS (Florida Statutes) 943.0435(4)(h) and (9) did not require the individual to register as a sex offender until the completion of their probation. And, the 2nd District Court of Appeals agreed.
Mr. Croce failed to register an instant messaging device which is an obligation in 943.0435(4)(e). He argued this was not required since he was on probation which is a sanction that needs to be completed before the obligation to register exists.
This argument was successfully described previously in State v James (2020) also from the 2nd DCA. The Court clearly noted in that case that a sanction had not been met (prison term and then paying hefty fines) which the Court considered prerequisites to an obligation to register.
The opinion weighed heavily on the importance of statutory intent, case law and new laws.
The State went further by having the Legislature clean up the statute to make its intent clearer.
The Court ruled “en banc” so all judges in this appeals court have been heard on the matter.
The Court smartly parked ex post facto influences.
The reader is left vexed.
My attorney sent a letter to FDLE sex offender department quoting the precedent and demanding to have me removed on the basis of this ruling when I was on probation about 3 years ago when the ruling first came out.
It was simply ignored and my attorney after many attempts, never heard back from FDLE.
Don’t count of getting off the registry while on probation. They will simply ignore the law.
Your lawyer has to petition the Court – not just send a harshly worded letter to FLDE. He/She should know that.
I did, my probation officer said as long as I was on probation I did not have to register with the FDLE/county sheriff’s department, but I better register before the end of probation or I’ll be listed as absconded, and be arrested, this was also 19 years ago….
Yes. Absolutely. Without a doubt. Most likely. More or less. Perhaps. Maybe. Seems so. But then again. Not sure. Unlikely. Probably not. Certainly. No.
There – I’ve cleared it up for you. 🤷🏻♂️ Because courts. 😣🙄😒
So the question that still remains, is the Imposition of SORNA registration while serving a period of Probation/Parole lawful as relative to CROCE & JAMES?
I was on house arrest then probation when the registry was enacted in 1997, I was made to register while on both of those punishment sanctioned sentences. Surprised they do not register you while in prison.
And not allowing anyone to be removed ever, seems to cause some to give up and just do what they want. There is not cake at the end of the party but only mud which will be what you get for the rest of your life and maybe even after you are buried in the ground.
The more we fight, the more things they throw at us to fight even more. It is becoming exhausting and frivolous, which is what the other side is hoping for, for us to give up and accept our fate. They have unlimited resources, and they know we do not.
So the guy was on probation. He had not finished his sanctions).
He was arrested for failure to register. Did not register social user name.
The law at that time said that no one had to register until they had completed (all) their sanctions. (Case law was “State v James”.)
The court dismissed the FTR.
The state legislature then clarified the statute that said that completing sanctions mean completing any part of one’s sanctions.
The state filed a motion for rehearing stating that that the legislative clarification should control .
But the guy counters and says that “James” still controls and anything else is ex-post-facto.
They denied the state’s motion for rehearing and stated the statutory language (and not any legislative clarification – after the fact) ruled.
Now the state filed an appeal of the original granted motion . But while this appeal was ongoing, 2nd DCA (in opposition to the original trial court) rules that a legislative clarification (if it is a “recent controversy”) does, indeed rule (In St. v Hull).
So, since the state’s “James” appeal was still pending when the DCA ruled on Hull, then Hull suddenly became controlling.
And since the original motion was a motion to dismiss –because 1) the facts were not in dispute and 2) the state did not have a bona-fide case, and it was granted, then the DCA was forced to review the case “de novo”. So, all the previous findings had to be thrown out and they had to start fresh.
So then the DCA goes through several cases that argue the “supremacy-of-text” principle versus legislative context. Or, what the statute says in plain language versus what the legislators “intended”, and they side with the US Supreme Court’s findings (which substantially goes against the grain of Florida State common law) that “supremacy-of-text” rules.
They affirm the lower court’s decision to grant the motion for dismissal.
At least, that’s what I got out of it.
Since I was on house arrest and probation starting in 1997 and ending in 2003, shouldn’t I be eligible for removal for the 25 years since I was serving registry and sanctions at the same time? That would put me at 26 years because according to the decision, no one should be on the registry while probation, house arrest or prison?
I believe that the ruling would be that, if you were on the registry during the entire time that you were under sanction, That time on the registry counts regardless of whether you are supposed to be on the registry or not.
You were, in fact, a registered citizen during that time period. And, since you have been continuously registered with no hiatus, then that time should toll.
Just my thoughts. I am not a lawyer.
JJJJ
But They state that the clock starts once you are off all sanctions. That is something that would be interesting to challenge. The law makers do what my Cherokee ancestors call “Speaking with a forked tongue”. Some call it “Talking out both sides of your mouth”. And finally, “Do as I say, not as I do”.
Unfortunately, the “25 year rule” is worded in the Florida Statutes so that the clock doesn’t start ticking until after probation has been completed. However, under Federal SORNA, if you are in Tier I or Tier II the clock starts ticking from the date of your release from incarceration or placement on community supervision (Federal SORNA requires those in Tier III to register for life with no possibility of release if convicted as an adult).
In my particular case, the 25 year clock will expire on my independent federal duty to register on April 27 of this year since I was “released” onto community supervision on April 26, 1999, but my 20 years for purposes of seeking removal in Florida (assuming they still honor that for those of us with offenses that predate the change from 20 to 25 years) will not expire until December 17, 2030, since my probation ended on December 17, 2010. At this point, in my opinion our best realistic hope is that Florida will eventually modify its registration requirements to match Federal SORNA, which would provide relief to many thousands of Florida’s registrants (not all, but quite a few).
They absolutely will not honor the 20 year time line. Iv tried and was told to come back in 5 years. Attourney Ron. K gladly roll the dice with your money if you would like to try tho. But if you had as much as a misdemeanor traffic ticket yiur not eligible for removal. Fl is not going to let up. Not trying to sound cold or mean. But I let attourneys drag me out for over a year only to be shut down and wasted 12k. I got 10 minutes in court and watched 12k in hard earned money fly away.
Respectfully, if you were otherwise eligible for 20-year relief from registration but had a disqualifying arrest, Ron Kleiner, would have told you about the uphill struggle you would have about being relieved from registration. Was that not the case?
Beleive what you like. I’ve been there and done that. Take Ron out if the equation. Use any attourney that does files these removal petetiins. Most not all will take your money even of you have a 5% chance of being granted removal for any number ber of circumstances. It’s yiur or anyone’s money. Do what you will. But you’d be better off just donating that money to FAC. There are so many reason they will deny you for.
My petition was granted under the 20-year rule (20-years + after release from probation and no arrests since then). The State objected but the Court approved the petition. That has been my experience with Ron Kleiner.
How do you know what federal you are in ? How do you ensure it’s correct placement and contact for removal?
I was recently released from federal supervision. During the whole time, the probation officers ordered me to register at my local Sheriff’s Office. If I was still on probation, I’d seek declaratory and injunctive relief.
If you are under sanction, currently, it is your responsibility to register. That is my understanding.
The reason that the guy won in this case was because the legislative
clarification came after the fact. It would have been ex post facto punishment in his case.
But since the Florida legislature has made the clarification, and now everyone is now required to register.
I am not a lawyer. But I’m pretty sure of what I’m saying.
My advice, for what it’s worth, is don’t play with them. Just go register. They have spoken to this issue and made themselves very clear!
Why doesn’t the Florida Supreme Court ever hear sex offender cases? Did they decide at some point that they weren’t going to hear cases challenging the registry anymore?
Until it their Own families who are behind those bars they will never want to understand what is happening I was like that myself I thought I was a good law abiding citizen until one day the news media helped me to be on this registry by telling myself I would never be like them that was a lie one week later I was in jail for laughing where my Heavenly Father allowed that to happen to me where I could not understand so don’t ever laugh at someone mistake
“sanction” was defined broadly to mean “[p]enalty or other mechanism of enforcement used to provide incentives for obedience with the law”, and “impose” meant “to levy or exact as by authority.” See The, Black’s Law Dictionary (6th ed. 1994).
Thus, by the lights of the foremost legal dictionary’s definitions, “the sanction imposed” means, as we said in James: the (not any) particularized (not indeterminate from among a nonexhaustive list) penalty (not just incarceration) exacted by the authority of a criminal court.” P35-36
It says “the sanctions” so loss of voting rights would be a sanction, correct?
My gun rights weren’t restored that is another sanction.
I think another keyword is it not limited to the examples of incarceration, fines and probation, so maybe we could use that to open more avenues.
I wonder how to intertwine living restrictions with “all sanctions”. If I’m forced to live 2500 feet from something wouldn’t that be a sanction or would they say that’s collateral damage fallout. If the registry originally is supposed to be about registering and nothing else we should we be challengeable living restrictions as a form of sanctions.
Hopefully someone cunning will use this court decision to get the ball going with more law suit trying this angle.
Eugene, I like the way you think. I’d get on board with a civil action with request for declatory and injuctive relief based on the fact that I too am not free of all santions such as my the nonrestoration of my right to vote and bear arms, etc that you mentioned.
Folks, if you are a Floridian convicted of a felony sex offense, then you are required to register per 943.0435 and barred from voting per the Florida Constitution. We are not going to get relief from these by discussing what constitutes a sanction.
Jacob,
I often see your posts and wonder if you’re a lawyer.
i would suspect the being required to reg. is a sanction that has nothing to do with being a felon as many had adjucation withheld and are required to reg.
I believe that our ex post facto lawsuits have more merit and should be our primary focus. But I wouldn’t be so quick to dismiss this case.
However, if you would have told me 10 years ago that I could have delayed requiring to register until completion of probation, it would have greatly helped with transitioning from prison. You also would have had my attention.
But what does constitute a sanction? This could be a very interesting question for the courts to answer. So far in James fine’s qualified. In Croce probation has qualified. If we only look at how to defeat the registry or at least chip away at it from one angle we’re failing ourselves.
This is kind of a double edged sword. Here in Michigan, you are required to register while you are still in prison, and failure to do so will result in your security confinement being raised, yet time spend on the registry does not start until you are officially discharged from parole.