Great case: No duty to register if not “released from the sanction for conviction”
An excellent case came out of Florida’s 2nd District Court of Appeals last week!
An individual who had been charged with a Failure to Register (FTR) had his charges thrown out by the Trial Court (and the Appeals court now agreed) because the statutory language of 943.0435 did not require he register.
You must read the order to get a full appreciation of the magnitude of this decision: Florida v. James
According to the language of the statute, one must be convicted of one of the enumerated crimes and (II) Has been released on or after October 1, 1997, from the sanction imposed for any conviction of an offense described in sub-sub-subparagraph (I). For purposes of sub-sub-subparagraph (I), a sanction imposed in this state or in any other jurisdiction includes, but is not limited to, a fine, probation, community control, parole, conditional release, control release, or incarceration in a state prison, federal prison, private correctional facility, or local detention facility.
James didn’t register, but argued that he wasn’t required to because he had not yet been released from the sanction imposed by his conviction – he still owed money.
This case is potentially ground-breaking for those who are still under sanction for their conviction.
More to come…
Confusing.
FL legislature will fix this, won’t they? And in almost any SO case, registration’s also required by judgment orders (not just statute), right?
I mean, it’s not like we’ll get to a point where, say, a court orders the state to remove parolees from the registry (will we?).
Cases like this one fuel the imagination.
Jacob may have a point. HOWEVER, if the law is “fixed” it will be because of a law from 2020 so it would not apply to you as it would be ex-post-facto. WINNING!
The entire statute is ex post facto, including its amendments, so presumably the fix would be ex post facto as well. Though I would love to be wrong on this.
Ex post facto is confusing because it does not apply to civil regulatory measures, which is how registration is considered. Until the U.S. Supreme Court rules that registration constitutes punishment–which would open the door to ex post facto and 8th Amendment analysis– states can make just about any rules they like as a “public safety” scheme.
Encouragingly, we are seeing some cracks in the “not punishment” wall in both state and federal courts. One day the SC will accept a case allowing it to revisit its 2003 Smith v. Doe decision that started this mess.
Well said.
I challenge anyone to name one other “Civil regulation” that results in a person going to prison? I know it is preaching to the Choir but this is one of those “Look away and pretend you don’t see them” situations.
Some super rich people walk past a smelly homeless person and they are revolted they came near them so they look away and walk faster. The courts are doing that to us.
Also when you make regulations, how can you say “Ok only white people have to obey this, only women have to do this, only LGBT people have to follow this rule”. Why isn’t there a registry for robbers, car jackers, drug dealers etc.
Then there is the gun laws for convicted felons. That is where we need to look at each challenge to find the language that contradicts post sentence sanctions. Not being able to possess own a gun is an avoidance law when SO registry is a law where you have to give up your personal freedom 4 times a year forced to speak and incriminate yourself. There has to be a challenge already on the gun laws that would point to SO registry being punishment. Anyone following? I’ve looked but haven’t found it but I bet it’s there.
Not to mention that the penalties for registry violations often exceed those for the original crime requiring registration.
According to this holding, those of us from out of state who left Florida on probation after being sentenced shouldnt have been placed on the registry in the first place?
.. according to this holding “sex offenders” don’t go on the registry until AFTER they are released from supervision and all sanctions.
This could indeed be huge, if I’m reading this correctly.
OMG THIS MAY BE AWESOME!!! i had the court place what remaining fine/costs onto me as a lien that has never been paid. maybe i won the lottery!!!
So please explain this in laymen’s terms. Because it sounds familiar.A 1991 charge was 4 years probation.Got a technical violation got 7 Year prison term got out in 2001 been trouble free.Then got violated for not changing address on d.l. now going through courts.from 1991 when I was 18 in high school now I’m 47 and still going through it!!! Help
Really just never understand florida: got taken in on a ftr was between here and new york at the time: state decided to file a no information and not pursue yet ended up on the list when corrections captain input me night i was taken in. Even lawyers couldnt figure it out and they will not expunge the arrest even though they didnt even file a charge.
Are you on in New York or Florida? After this decision, it would seem that if you were on in Florida, you just go in to a court and say I’m not required to register because I was never convicted even using the broad definition of conviction and the Florida statutes
First the Penthouse thing and now this? Is the 2nd DCA getting a bit uppity?
My judge gave me the option to petition out of probation in the near future. In light of this ruling, I am tempted to say, “no thanks! I love probation! Remove me from the registry!”
I realize, of course, that this would be an easy fix for the legislature, who won’t let this go uncorrected if the ruling is upheld.
I had to read it many times. It seems like a wow. So let’s say it is as good as it appears. But then the legislature comes along and fixes that. Would/should those up to that point, of the fix, fall under ex post facto and still have an out?
Unquestionably they will try to “fix” this, but in the mean time this is SIGNIFICANT
As is obvious to all, the “loophole” will be fixed quickly by the legislature. My question is what happens to all the people who received a conviction for FTR? Can they now file to have the conviction vacated either through some state procedure or a federal motion under 28 USC 2254? It seems they all have a valid case of “actual innocence” because what they did, i.e. not registering, was not unlawful.
Good question and in the 2nd Circuit – if you got an FTR, I’d certainly be speaking to your attorney.
Is this binding precedent in that state circuit only?
It is, it’s persuasive elsewhere.
If nothing else, it proves there are judges who actually believe in the law and what it stands for. Not just letting your feelings get in the way of your decision making.
That advice is important for those in other circuits with an FTR conviction. First, you might just win and set the precedent in other circuits. If you lose, that sets up a “circuit split” which only the state SC can resolve. As soon as the legislature rewrites the law, all those without an FTR conviction will lose standing to challenge the law, but those with FTR convictions or pending indictments will not. Federal courts have taken a dim view on convictions for actions that were not criminal.
This decision addresses the plain language of the law, not merely a judge’s perspective on some implementation nuance. The legislature simply blew it with that particular wording. All a judge really can do is to presume that is what the legislature intended.
I’m guessing Princess Lauren will interrupt her quarantine imposed Twilight marathon and whine to her daddy to fire the trial judge that originally ruled and close the appellate court that upheld it. Big Daddy Ron, after buying her something shiny and new, will then write another bill in her name “fixing” that particular statute and likely making it retroactive, adding another issue to FAC’s ex post facto challenge.
Who wants to start a betting pool on how many times Princess Lauren says “I’m a sexual assault survivor” when it hits the assembly floor?
All they have to do is change a few words in the statute. I don’t think Lauren will encounter any resistance from her colleagues on this. It might not even be debated.
So I read this but also clicked on the link to read the courts order. According to what they are saying, since I was still on probation in 1997, I should not have been put on the sex offender list because I had not been released from sanctions? I mean that is plain as day.
So not only was I ex post Facto-ed in but they added me when I should not have been. Double whammy.
It’s very confusing. My son was required to register within hours of walking out of the courthouse. He was on probation and of course had plenty of fines. So this is saying that he didn’t have to register then? Am I understanding this correctly?
Another point that comes to mind is if the duty to register is in someone’s court papers isn’t that a sanction?
Dear FAC,
Will the lawyers in Doe v. Swearingen be arguing this for us in the near furture?
So it’s additional punishment then. After your released you gotta go do this the rest of your life. Stupid me I paid all my crap off thinking I’d get restoration of civil rights from Scott so trying to find an angle in…
how many people were supposed to complete SO Counseling as part of their sentence but as we all know that money grabbing scam never ends and when probation ends that is never brought up but it was still part of your sentence or probation orders so technically i think you’re still under sanctions or did not completely pay fine n costs or had them put on you as a lien
so this ruling is the holy grail that will turn into sess pool
what if u were “terminated unsuccessfully” because of the fact u didn’t complete SO counseling?? Huh? how bout that?
let’s really start getting anal about it all
On second reading of the opinion, it would appear that anyone on probation would also be exempt from registering. I wonder how many of Florida’s 70-some thousand registrants that would apply to, and if they’s have grounds to sue the state for forcing their registration and associated disabilities and restraints anyway.
Such a suit should also mention that around 40 thousand of Florida’s registrants are either dead, incarcerated, or not in the state. Considering Florida’s registration law is for life, the estates of the dead registrants should be suing as well. As should the incarcerated (their sanctions are obviously still being imposed).
U are not corrrct Dustin. Read again
Read again. The statute in question specifically says probation, copied/pasted from the linked opinion as follows:
For
purposes of sub-sub-subparagraph (I), a sanction
imposed in this state or in any other jurisdiction
includes, but is not limited to, a fine, probation,
community control, parole, conditional release, control
release, or incarceration in a state prison, federal
prison, private correctional facility, or local detention
facility.
(Emphasis added.)
Emphasis was added by the court.
First off Dustin, whoever wrote this article left out “convicted” or released after Oct 1 97. So basically if u were convicted or released AFTER Oct 1 97, u have to register. If ur probation ended before Oct 1 97 u don’t have to register. The moderator does not seem willing to step in and clarify anything at this time. So I guess wait and see.
The case suggests one does not have to register UNTIL released from sanction.
well the actual statute reads “convicted or released” so what is all the hoopla about?
“Convicted AND released.”
Convicted AND released would have been they Constitutional way to draft it in the beginning. But guess what?
I meant “convicted OR released on or after oct 1 97
But
If we have to register at all, it should be while you are on probation then when finished or released from it, be able to be removed.
The more all over the Country the courts are bombarded with cases about the registries, they are eventually going to have to either start from scratch or wake up and end the circus and scrap the entire foolishness.
Sanctions including, but not limited to fines, probation, and all the other circumstances in the statute. Thank you FAC, for clarifying.
I’m sure the Florida legislature will consider this an emergency, but there is a window for Florida registrants to make some waves here. I hope they take it. I certainly would if I was in Florida, but I’m not willing to move there for the purpose.
u are correct. I went back and actually read it.
What would be a total laugh riot would be if someone was on probation for a registration
Violation. Who’s head would explode in that instance? LOL
Can someone please explain this to me in Lay’s man term??
Not having civil rights restored isn’t that a sanction?
Valid point!
Nowwwww youve peaked my Interest!!!! Not being included in prop 4 and being specifically EXCLUDED Would be a direct sanction resulting from?
Has anyone ever successfully argued that loss of civil rights is a sanction, or is this a novel argument that would be made in court for the first time?
It’s not included in the text of this statute, which only mentions judicial sanctions, so imagine someone trying to sway this judge on that notion.
Jacob, the loss of civil rights is a punishment imposed for the conviction of a felony unless the court withholds adjudication.
I bet there’ll be a flood of habeas corpus. I’m on probation myself for violating something I didn’t even have todo. Kissed my sleazy attorneys ass, my low life POs ass. Paid 10s of thousands. Been humiliated with a gun in my face for 18 years these cops knocking on my door having to goto the jail 4 days a year Where everyone hates me for no good reason like a little kid worrying daily if I’m gonna be caught in some Registration sting following these county and city ordnance’s been basically bullied to stay home and live a mediocre life lol I’m hoping we can sue for this. Saying “this isn’t what we intended“ isn’t gonna be a defense. Damn I’ve been seriously harmed but this.
Rick Scott appointed this judge. Credit where credit is due.
Plessy v. Ferguson 1896.
PERSONAL LIBERTY’, it has been well said, ‘consists in the power of locomotion,of changing ones situation or removing one’s person to whatsoever places one’s inclination may direct, without imprisonment or restraint , unless by due process of law’.
Bolling VSharpe, 1954
Although this Court has not assumed to define “LIBERTY” with any great precision, that term is not confined to mere freedom from bodily restraint. Liberty under the law extends to the full range of conduct which the individual is free to pursue, ( residency and employment opportunities) and can not be restricted except for a proper government objective. (Due process requirement)?
Florida V James makes crystal clear that statutory language has meaning, it is an edict of the legislature.
More to follow…….CMC V Florida
I would love to start a conversation with my follow transient citizens. Back in 2005 there was a disastrous decision out of the Eighth circuit court of appeal which found that there is no ‘liberty interest or “Right” to live where one wants’ and as such the US Supreme Court of the United States denied Certiorari.
It appears to me that the courts are split on the semantics of residency rights as found in Bolling V Sharpe, ‘1954 Although this Court has not assumed to define “LIBERTY” with any great precision, that term is not confined to mere freedom from bodily restraint. Liberty under the law extends to the full range of conduct which the individual is free to pursue, ( residency and employment opportunities) and can not be restricted except for a proper government objective.
The argument here is not whether or not one has the right to live where they want, the argument is whether there is a Liberty interest to change residencies without restriction, an agreement found both Sharpe and Dow V Alaska as affirmative.
My thread will lead into the Florida legislators intent to impose as punishment a residency restriction first enacted under 947.1405 (7)(a) Jan 1 1994, 948.30 effective on or after Oct 1 1995, 794.065 effective on or after Oct 1 2004. (One year prior to the Miller decision).
But right now this transient needs to register.
I am wondering if this decision will affect those of us who live in another state? I had to register in Florida while my wife and I were visiting relatives.
I have just spoken to our attorney in Polk County who said the case does NOT apply to my husband because he was correctly convicted of being a sex offender.
Now I am really confused as both the courts and the statute seems to specifically state otherwise.
Is my lawyer correct? Would love some comments on this.
Being “correctly convicted as a sex offender” has absolutely nothing to do with this ruling. So I have to admit to confusion over this attorney’s response as described here.
It’s hard to say more about it without knowing what the question was and how the attorney answered it specifically.
No one here is in a position to say the attorney’s wrong, of course, since we are not attorneys, are not qualified to provide legal advice, and do not do so on this site.
But we do share our personal impressions of rulings. And I suspect that a lot of attorneys are still struggling to guess the implications of this one.
Not sure there is a charge in the statues charging you as a sex offender since just being a sex offender is not a crime.
How can you be convicted of being a sex offender? Please send me that criminal code and statue stating you can be charged as a sex offender.
The designation of a person as a sexual offender is not a sentence or a punishment but is simply the status of the offender which is the result of a conviction for having committed certain crimes.
943.0435
Quoted from Florida statues Florida legislatures website
Now my opinion, HELL yeah that is a sentence
Here’s where this case is headed:
https://www.news-journalonline.com/opinion/20200508/donrsquot-let-sex-offenders-hide-from-registration–sheriff-rick-staly?template=ampart
“they are legally allowed to hide who they”
WTF are we hiding. Do they have proof we are continuing to offend?
Some people say “Once a cop, always a cop”. But, if you try and stop and shop lifter and yell “Stop I am a cop” you will probably be arrested because you are NO LONGER a cop.
In your heart you may still be a cop but that is up to how you feel. Do any of us in our heart still think we are sex offenders? If you do, then thanks for being honest but enjoy staying on the registry for the rest of your life and maybe afterwards.
I respect law enforcement but when Sheriffs start putting their personal feelings into situations , it is as bad as a judge sentencing you with their feelings instead of what they law says (How I got my sentenced shortened on appeal)
It seems because the court ruling mentioned ‘and all other jurisdictions’ this may indeed apply all across Florida as the Sherriff quoted in the article implies.
The question I have is: does the ‘fix’ become retro active since the law has been in place since 1997 and the laws intent does not matter to the court? Wouldn’t the ‘fix’ have to take place from the date it is adopted to begin?
Legislature will most certainly make the fix retroactive. Remember that they made virtually the entire registration law, and its amendments, retroactive, and will continue to do so until the court rules that it fails the balancing test for ex post facto punishment.
Another difference, anyone can just log onto the computer and within seconds be on the offender website for free.
Before that, if you wanted to see someone’s record, you had to go to the courthouse, fill out a form and pay a fee (You still do in my places to get records)
I do not care if someone wants to waste their day at the court house paying to look at my records because unless they are sealed, anyone can do so and have been able to do so for many decades. Unlike the registry where anyone without permission, fees or filling out any paperwork can view damning information about us that most likely is not even still relevant to our lives.
I might also note, that most of the people who have seen me on the registry and confronted me, do not even live in my neighborhood.
Is state appealing this to FL S.Ct. or are they letting it stand?
Any other circuits use this yet?
They first asked for (and were granted) a rehearing.
04/15/2020 Affirmed – Authored Opinion
04/27/2020 Notice of Appearance Kevin A. Golembiewski, Esq. 1002339
04/27/2020 Notice of Appearance Amit Agarwal, Esq. 125637
04/27/2020 Motion for Extension of Time Amit Agarwal, Esq. 125637 APPELLANT’S MOTION FOR EXTENSION OF TIME TO FILE MOTION FOR REHEARING AND REHEARING EN BANC
04/29/2020 Grant EOT (general)-74c Appellant’s motion for extension of time to file a motion for rehearing is granted. The motion for rehearing shall be filed on or before May 30, 2020.
05/21/2020 Motion To File Amicus Curi. Brief R. W. Evans, Esq. 198862 MOTION FOR LEAVE TO APPEAR AS AMICUS CURIAE
What if adjudication was withheld no conviction 1992 released from probation 2000
if you have been released from probation and not had any subsequent arrests, contact legal@floridaactioncommittee.org
Hold the bus.
An idea just came into my head. If the courts rule the registry IS punishment, then that is a sanction and we are not required to register if we have no been released from sanctions.
Oh well either way I was on probation ( A sanction & punishment ) when the registry came out and was ON the registry since 1997 so seems they illegally had me and many others on the registry because I sanctions were still in play?
Like F.A.C said, they will re-write that part or add an addendum to fix it. Then that will be another Ex post facto case as they again modified , changed, or added something to the registry. It just never ends.
“Oh, what a tangled web we weave, when first we practice to deceive!” Sir Walter Scott, 1808