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.
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.
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 question that still remains, is the Imposition of SORNA registration while serving a period of Probation/Parole lawful as relative to CROCE & JAMES?
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. 😣🙄😒
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….
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.