Florida Third District Court of Appeal affirms lower court ruling for registered citizen
On November 16, 2022, a registered person won an order to be removed from the registry (State of Florida v. David Whitehead F95-37823) after 20 years in the state of Florida, beating the 2007 amendment, as the judge in the case said it was punitive in nature and could not be applied retroactively.
The state then appealed the decision.
The appellate court ruled on March 20, 2024, to affirm the November 16, 2022, decision with the whole appellate court reaching a decision without an opinion. This virtually makes it non appealable to a higher court. Most supreme court cases will not be picked up if it is an appeal without an opinion.
To summarize, the registered citizen was removed from the registry after 20 years, with the 2007 law mandating a 25-years waiting period being found to not be applicable in his case as the provision was deemed punitive and cannot be applied retroactively. The state appealed and lost.
Florida Action Committee is grateful for the work that Attorney Ron Kleiner has put into this case.
I am a little lost on the logic. If the State will rule being on the registry an additional 5 years is punative, how were the original 20 years not punative and as such, ex post facto would apply to all registry changes made since its inception.
Bob is your uncle. That is correct logic but it seems like logic escapes this process. If one law adding a further restriction ie 5 years wouldnt it stand to reason that any addition to the original law would be punitive? Seems logical to me.
I think it was based on the judge that ruled 20 years is long enough and then another judge said it is 25. The court was willing to say 20 was enough but not to rule the registry can be thrown in a septic tank where it belongs.
It would be great if someone could post the trial court’s order so we can see the basis of the decision.
The trial court’s order is in the first link along with the record and pleadings.
Kyle,
The original Order in Whitehead is superscripted above
Thanks for all your efforts Ron. You are now a celebrity.
Don’t know you Ron, but you are a Saint! Thank you for being so brave.
I will see what I can do, Kyle, but don’t hold your breath on my obtaining it.
Alan
Take the win. You can have one piece of candy but not the entire bag. We still get a candy, just not the entire bag.
In the meantime, I am leaving it up to God, His warriors, Ron, FAC and others that put the work into action.
Ron fought for all of us and am sure he is not done. Not too many going to notice a few people getting off the registry at 20 years. But once someone challenges the entire registry, that is when the courts have a hissy fit.
Well done on the appeal, Ron!
Bio
I second the motion
I appreciate what Ron has done. So, what if an offender was convicted in 2004 and sentenced to 10 years probation but registered the entire time he was on probation. Based on the Second DCA holding in State v. Crose, he was not required to register while on probation. Shouldn’t the 10 years he registered while on probation, but was not required to, be credited so that he could petition for removal under the old 20 year removal statute?
Good question, reach out to Ron and ask him.
It’s seems the key here is when the court said the law was punitive.
This looks awfully persuasive for our 2 ex post facto cases. Hopefully the 2 judges of those cases see this ruling.
If you can people donate to day so we can continue to fight against this corrupt system.
Prior to 2007, 943.0435(11) provided an opportunity to petition for relief after 20 years without subsequent arrest. In 2007, the State moved the finish line to 25 years and added a bunch of offenses that would render someone never able to petition for removal.
https://floridaactioncommittee.org/florida-cant-move-the-finish-line-on-removal/
This will be binding precedent in the Florida 3rd DCA and persuasive authority in other Florida judicial districts.
That’s good news for many I’d guess. I had one technical registry violation over 20 years ago. That one arrest keeps me from being removed even tho it was a technical violation and not anew charge. Un Fn believable
You might want to contact Ron Kleiner on your situation. A few years ago, he was on a membership call and said that sometimes a person can still get relief even with a technical violation. Contact info for him is at our site. I don’t know what the cost would be.
Well, Funny you should mention that. I was on that call and asked that question. I did do a petition with Ron that we withdrew because of the technical violation. I have the time, but the one violation seems to be the road block.
No two cases are the same or necessarily have the same outcome.
That’s true. But 30 years if being beaten down by the state has me a little convinced things will probably not changed for me. I hate to be negative. But all the state has ever done in punish me more and more as the years go by.
Pariah
I will be praying for you and all of us. I wish the Supreme court would have the balls to state the truth that any registry is punishment and especially when applied retroactively.
The statute specifically states that a petition can be filed and relief can be granted if the petitioner “has not been arrested for any felony or misdemeanor offense since release.” First, release is defined in the same statute as the expiration of all sanctions, including probation. Second, an arrest for a technical violation of probation (and not a new crime) is not an arrest for a “felony or misdemeanor offense.” The Legislature could have said “any arrest” or “arrested for any reason,” but it specifically said for a felony or misdemeanor offense, and after release. By definition, a technical probation violation is not an arrest for a felony or misdemeanor offense, nor is it an arrest after release. I’m not sure I agree with your attorney on this (note: I’m not an attorney), but the law is clear and to my knowledge there have been no appellate cases on this matter, so it would be a matter of first impression if appealed.
The “technical violation” at issue is for failure to register, which is a 3rd degree felony, and hence disqualifying by definition.
I got hit with that but they filed a no infor mation so it went nowhere. Not the dropped charges it was Charges never even filed Never even got arraigned. Im out of state and federal. Level 1 in ny only because they changed law and needed to classify. Was actually not any level. My home state was non public and i was removed from it. Now stupidly im on this one in florida. Offence: 27 years ago. Never went to jail, just got a quiet probation. All good…… until i came here. Sux
JM
Well damn, now I don’t feel so bad. I feel for you buddy. Each of us has a story and how the registry impacts us and our families.
I have had doctor’s send me letters not explaining why, but stating they will no longer be able to provide care for me. Well we all know why. I looked at my chart once when the doctor had stepped out and there was a notation in my chart about me being an offender. Really? What happened to the oath to care for all patients?
Pariah
Don’t think for a minute that was not on purpose. They (Judges, lawmakers etc) will do whatever it takes for us to be punished even unto death. IE: Dead people still on the registry.
Even when off of registry, our mugs shots stay on those websites for arrests, but I will take the win in any form we can get.
Just had a church tell me i cant be there. Even though im always with my
Family never alone. Have no restrictions as it was pre 1997.
Sorry to hear that. I hope that you can find a more welcoming church community.
Didnt think they could do that. Really sux.