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.
This is a huge win – probably the biggest victory against the registry Florida.
The sad part is, even though the registry is labeled as “non punitive” being removed is not automatic. Many who have been in prison have never recovered their lives and live paycheck to paycheck. Many cannot afford an attorney and since it is not considered criminal, a public defender cannot (Or won’t) represent you.
Petition for removal is not a sure thing, but this ruling makes it a bit more easier as the challenges to removal have been addressed by Florida’s highest court. So even if you pay a lawyer $15,000, that is no guarantee you will win, which applies to basically any court hearing, criminal or civil.
We all agree that with such a ruling, we that have not had any new arrests, should automatically be removed. Unfortunately, the courts left that part up to us, which is weird as they did mention parts of it is punitive for those of us who were the original group in 1997 up to a certain point.
I have been looking for loopholes for years but many of the judges seem to wear earplugs when hearing registry related hearings.
Cherokeejack you are so correct! SITUATION-on registry 1987 (2 months before probation ended)-went thru 1 year clemency investigation and had civil rights restored therefore removed from registry in 1989 by florida statute §943.0435(11) (1998). Fast forward 23years -2022 FDLE demands re-register due to newer statutes. AND threatened with jail if do not move from home of 35 years (local ordinance distance violation). Local judge refuses 2X to even allow a hearing. Zero arrests or even suspicions of anything -it’s a witch hunt!! I do believe this is a one of a kind case where removed by statute then forced to re-register when the laws changed. Would love to know if there are others out there in this situation.
I find this ruling both encouraging:
“21. The Court thus finds that the 2007 Amendment to Florida Statutes §943.0435 is a substantive change which cannot be applied retroactively against Defendant, who was placed on the sex offender registry prior to its enactment.”
…and disturbing:
“7. Defendant brought his Petition under the 2002 version of §943.0435 (11) which was in effect on the date he completed probation, and his twenty—year period began to run.”
Does this mean even though you were placed on the sex offender registry prior to 2007, you still fall under the 25 year tolling period if you didn’t complete your probation prior to 2007?
To a layman like myself, it seems contradictory and confusing.
Yes, I believe so.
Your time starts when you are free from sanctions and, unless your sanctions ended before 2007, sadly, you would fall under the 25-year rule as I understand it but PLEASE reach out to Ron (https://kleinerlawfirm.com/). His consultations are free and he is not going to get your hopes up if he can’t help. Getting legal advice from a forum is not your best strategy. Good luck!
Since some of us is discussing what of scenarios, if I recall there was a recent case where someone who was on probation did not have to start the registration until they were finished with probation. Unfortunately I am in the 25 year removal rule but started the registration when first sentenced. Do some of you see it as an issue down the line and when asking a judge to be removed that a judge may say Mr ….. “Your 25 years is not here yet you need to wait another 3-5 years that you can request to be removed since you were supposed to start registration at this time not when you were first sentenced?
The time (20-25 years) starts running once you are off of sanctions, including probation – not when your probation starts. Also, the provision only includes some (not all) sex offenses and you will be disqualified if you are arrested for anything over the 20-25 years that you are in the penalty box. To be considered (as I understand it) to be released after 20-years, your sanctions must have been completed by 2007
This is a great reference here https://floridaactioncommittee.org/member-submission-a-few-faqs-on-the-process-of-removal-from-florida-sex-offender-registry/
so if someone off sanctions is arrested 3 months after being off sanctions then after 20/25 years after being arrested i wounder if they can get off the hit list as its been 20/25 years that may be the next avenue mr. kliner could look at
Keep in mind, the removal is not automatic nor guaranteed. Even if you are right up there with Saint Christopher, the judge has the final say. And it, as I am lead to believe, no appeal on that. If you are denied, you have to wait until 25 years and again, if you cannot get off at 20, might not ever get removed.
It sucks being afraid to leave the house because I am eligible and dare not even throw a candy wrapper on the ground to catch a violation. Removal at 20 years should be automatic. We did our time then some. And not everyone is fortunate enough to afford an attorney. Win or lose, it takes a load of money to go to court for something like this.
So, it is true that according to the statute, if a person required to register meets all of the requirements, the judge “may grant or deny relief.” I have not seen any appellate cases on this yet, but I’m sure they will start coming now that many have passed their 20 year mark. So we will just have to wait and see on how appellate courts interpret that provision of the statute.
However, there is nothing in the statute that says that if the judge denies relief, you have to wait another 20 or 25 years. In fact, the statute specifically provides that “if the court denies the petition, the court may set a future date at which the sexual offender may again petition the court for relief, subject to the standards for relief provided in this subsection.”
So yes, it is all up to the judge. But there is no legal provision mandating another 20/25 year waiting period to submit another petition.
Thanks RM, let me clarify what I wrote, I think I typed faster that I think or vice versa LOL
Yes, if you got denied at 20, you had to wait until 5 years later at 25 years because a judge had moved the date. The case was won so it is 20 now, but honestly, I am not sure how long you would have to wait to try again. That is something I will discuss with the lawyer. That opens a whole other can of worms.
Having said that, if you save up a lifetime of money and get denied, most of us could never save that much again so we would be screwed. It took me 20 years to save the money for me to try and get removed.
The supreme court doesn’t pick up an appeal without an option? With the logic of man its confusing about these corrupt courts of law. Appeals with an option or without an option sounds like man’s unethical logic. Everything is good if used in the right way these registry laws are unethical. One either makes a decision or a choice as in many of these registry situations.
Holding someone past their probation or time served is as unjust as in the slave trade was back in the 18 hundreds. Many of these operations are hypothetical and punitive in many ways to trap another or hold them on a lifetime basis for any length of time. Talk about fool me once shame on you, Fool me twice shame on me
I’d like to know that, too. I was placed on probation from 2002 to 2009 and was on the SO Registry during that entire probation period. Half of my probation was administrative probation as the judge removed me from SO probation halfway thru. And when I was sentenced the mandatory term was 20 years.
Peter
I have been registered since its inception in 1997 in Florida. Applied retroactively since no registry when I was arrested or when sentenced.