Sex Offender Registration Removal and a New Florida Case
Florida law provides that under certain circumstances an individual may have his name removed from the sex offender or sexual predator registry. However, before that can occur, the judge deciding the matter must determine that removal of the person's name will not conflict with federal law.
In a recent case called Miller v. State of Florida, a judge denied Mr. Miller's request to have his name removed from the sex offender registry because it conflicted with a federal law commonly known as the Adam Walsh Act. More specifically, the judge found that the Adam Walsh Act permits only persons who have been convicted of consensual sexual activity to be exempt from registering as sex offenders. Because Mr. Miller was unable to prove that the sexual activity that he was convicted of was consensual, the trial judge refused to order the Florida Department of Law Enforcement to remove Miller's name from the sex offender registry.
In response, Miller made three arguments:
1. The crime that he pled guilty to (lewd or lascivious battery), does not require proof that the sexual act was not consensual;
2. The Florida law that permits an individual to have his name removed from the sex offender registry does not explicitly require that the crime in question involve consensual conduct; and
3. The sex act that occurred between Miller and the victim in his case was, in fact, consensual.
On appeal, Florida's Fifth District Court of Appeal rejected each of these arguments. From now on, therefore, one of the things that a person trying to get his name removed from Florida's sex offender registry will have to prove is that the sexual activity he was convicted of was consensual in nature.
I have a question...
If a sex offender that was charged with an attempted Lewd (800.04) Where the offender was 19 and the girlfriend was 13. If the relationship can be proven to be consensual can a person be removed from the registry?
Attorney Chapman's answer:
No. Florida statute section 943.04354(1)(c) states that "a person shall considered for removal of the requirement to register as a sexual offender or sexual predator only if the person . . . [i]s not more than 4 years older than the victim of this violation who was 14 years of age or older but not more than 17 years of age at the time the person committed this violation."
I was charged with Soliciation to a minor VIA online service in 1997. There was no actual victim it was an under cover sting. I plea bargained and got the following 3 things, 3 yrs probation, 100 Hours of community service, Psychological Counciling and with hold of judication. I have finished witht he terms of the court and they still make me register. I have recently moved to another state and they will not honor my florida court records either cause I am on the registry and they say I must go back to court in FL and then bring them release papers. Is there any hope for me? What shoudl I do from here?
Attorney Chapman's response:
My suggestion is that you speak with a criminal defense lawyer in the state where you are currently living. There may be other options besides the one you've mentioned in your question.
My son was drinking with friends in a park at 16 yrs. old (not his best summer - he used drugs and was very self destructive) and he had sex with a girl there (she was 13- age unknown to him). He was charged with sexual battery coercion as a youthful offender. He was first put through counseling and determined not to be a sex offender and then went to drug rehab. He is now 32, married with two children and a college degree (which he cannot use - because he is on the sex offender list). The list of restrictions on his life is endless. Is there any way to pursue his release from the registry?
Attorney Chapman's response:
Look at Florida Statute section 943.04354 and see if your son qualifies to be removed from the sex offender registry. The URL for that particular statute is:
2009->Ch0943->Section%2004354#0943.04354">http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=Ch0943/SEC04354.HTM&Title=->2009->Ch0943->Section%2004354#0943.04354
I am currently facing charges for "transmission of materials harmful to a minor". It is not certain that I will have to register, but it is not looking terribly promising for me.
This has been a horrible and excruciating experience for me. I feel so stupid and I am humiliated. I am being charged with chatting with an undercover cop posing as a minor. The worst part was I made no attempt to meet, exchange numbers, or chat more than 1 time. It was one time of chatting online acting like an idiot. The location of the person I was chatting with was nearly 6 hours away. This was no Dateline NBC episode by any means.
Do I have any chance of future removal from the registry? Knowing I will probably have to register is overwhelming to me and it would be good to know if I have this option in the future.
Thank you.
Attorney Chapman's response:
It sounds as if you were convicted of Florida statute section 784.085 ("Battery of child by throwing, tossing, projecting, or expelling certain fluids or materials"). If that is correct, then you are not required to register in Florida as a sex offender according to Florida statute section 943.0435.
I was charged with a sexual battery (794.011) against me with my current girlfriend and was not convicted (adjudication withheld) but I am a registered sex offender with 5 years of probation left if I am well behaved. Could I petition the court with this new statue (943.04354) while on probation or would I have to wait till afterwards?
Attorney Chapman's response:
Florida statute 943.04354 appears to permit you to apply for removal prior to your sentence ending.
i was first arrested back in 2002 for allegedlly having sex with a minor. the girl lied about her age to me, not to mention....i never had sexual intercourse with her. i was 18 at the time and she was 14. a few years later, i was convicted of lewd act on a minor back in 2005 and now i'm on the registry for life. that messed up all my future plans of pursuing a career in the Air Force. i would like to know....can i petition to have my name removed from the registry? is there any hope for me?
I copied the following information from the Florida Department of Law Enforcement's website:
"How can I get my name off the sexual predator/offender list?
If you are a registered sexual predator or a sexual offender meeting Florida criteria, registration is required for life, unless you have received a full pardon or had a conviction set aside in a postconviction proceeding for any offense that met the criteria for the sexual predator/offender designation.
In accordance with guidelines set fourth in the federal Adam Walsh Child Protection and Safety Act of 2006, Florida registration law was amended, effective July 1, 2007, and removed the ability for a sexual predator to petition the court for removal of the sexual predator designation.
Certain individuals required to register as a sexual offender who have been lawfully released from confinement, supervision, or sanction, whichever is later, for at least 25 years and have not been arrested for any felony or misdemeanor offense since release, may petition the criminal division of the circuit court in the circuit in which they reside to remove their sexual offender designation. The state attorney in the circuit in which the petition is filed must be given notice of the petition at least 3 weeks before the hearing. The court has discretion to grant or deny the petition providing it does not conflict with requirements of the federal Adam Walsh Child Protection and Safety Act of 2006 and any other applicable federal provisions.
If you are an offender who is required to register as a sexual offender solely because of an out-of-state registration requirement the designation can be reviewed for removal when you provide FDLE with an order issued by the court that designated you with an offender or predator designation, which states that your designation and requirement has been removed. If your requirement to register and/or designation were not imposed by the court, you must demonstrate to the FDLE that your designation has been removed by operation of law in the state or jurisdiction in which the designation was made or required- contact the appropriate state registry in the state(s) requiring your registration for assistance. Please note that your removal from the Florida registry can be made only if you no longer meet the criteria for registration as a sexual offender under the laws of Florida, regardless of whether or not you are required to register in another state or jurisdiction."
My husband was in a strip club in 1994 , and one of the stripers what under the age of 16 (my husband at the time was 27). The strip club was busted for drugs, and my husband was arrected for procession of cocain. A few later after my husband was release for jail , he was re-arrested for Lewd and Lacivious behavior on or in the presense of a minor under the age of 16 years. My husband was never on sex offender probation but in the intrim he was arrested again on a separate procession charge for Heroin. Which if found guilty he would have faced a 50 year sentence. He was cut a deal and the deal was that he plea to Lewd and Lascivious. Again , he was not required to be on sex offender probation or do any counseling. He did 18 months and was released on drug offender probation. We just recently married and my husband has completed a rehab program for his addiction and is trying to live and upright life, but now his requirement to the sex offender registry has caused the apartment complesx we live in to ban him from our home , we current live in too different places. Do you think that my husband would qualify to have his name removed from the sex offender register.
Attorney Chapman's answer:
Please see my article entitled "How to Get Your Name Removed from Florida's Sex Offender List" at:
http://www.justiceflorida.com/2010/03/articles/sex-offenders/how-to-get-your-name-removed-from-floridas-sex-offender-list/
Florida keeps people on their registry even after they move to another state.
How can a person who moves to another state move on with their lives, get a job, raise their children if Florida keeps them on the Florida registry, even though another state does not require them to register in the state in which they now live?
Why would Florida want to keep a person on the Florida registry who has not even lived in florida for over 18 years?
My son plead guilty to a sex crime in 1985 in Florida. He completed his sentence in 1989. Then came the registry.
He has not lived in Florida for over 20 years, but Florida has him on Their registry. He has been crime free for over 2 decades but still, Florida chooses to ruin not only his life, but the lives of his 4 children.
Both federal and all state constitutions strictly forbid any ex-post facto law from being created. Retroactive application of laws are unconstitutional. Applying new punishments to a person who has already served out the complete contract, sentence of a court is against the law, unconstitutional. Florida violates that constitutional ban. All elected officials who support retroactive application of sex offender registration laws violate their OATH OF OFFICE by supporting these unconstitutional laws.
The state he now lives in does not have him on their registry. He did register, but the state he lives in does not require RETROACTIVELY APPLIED sex offender registration. The state he lives in belives in a little thing called a Constitution.
My questions:
1. How can those in office in Florida circumvent the state and federal bans on ex post facto law?
Attorney Chapman's answer:
Please see the following two articles that I wrote:
a. "Alaska Supreme Court Declares Sex Offender Registration Law Unconstitutional" at:
http://www.justiceflorida.com/2008/08/articles/sex-offenders/alaska-supreme-court-declares-sex-offender-registration-law-unconstitutional/
b. "Sex Offender Registration: Is It Punishment?" at:
http://www.justiceflorida.com/2008/06/articles/sex-offenders/sex-offender-registration-is-it-punishment/
2. Is there any way for a person to get off of the Florida registry for a 1985 plea bargain which had no mention of the registry as it did not even exists at time of the plea bargain/contract with the state of florida?
Attorney Chapman's answer:
Please see an article I just wrote entitled "How to Get Your Name Removed from Florida's Sex Offender List" at:
http://www.justiceflorida.com/2010/03/articles/sex-offenders/how-to-get-your-name-removed-from-floridas-sex-offender-list/
3. How can Florida lawmakers violate a constract/olea bargain by forcing added punishment after a person satisfied the full requirements of an agreed upon plea bargain?
Attorney Chapman's answer:
Please see the article I mentioned above entitled "Sex Offender Registration: Is It Punishment?"
My brother plead guilty to Lewd, Lascivious batt sex w/victim 12-15 years old; F.S. 800.04(4)back in 2006 at the time all this happened he was 16 and the girl was 13. Now I know that the Statute 943.04354 reads that the person is not more than 4 years older than the victim of this violation who was 14 years of age or older but not more than 17 years of age at the time the person committed this violation. The girl was not 14 she was 13 is they still a chance he can be considered for removal of his conviction even though she was 13 not 14 but keep in mind my brother was 16 at the time and that is not 4 years older its only 3?? please help me with this
Attorney Chapman's response:
As you correctly point out, Florida statute section 943.04354(1)(c) requires that the victim have been "14 years of age or older but not more than 17 years of age at the time the person committed this violation." Because the victim in your brother's case was not 14, your brother does not qualify for removal from the sex-offender registry under this statute.
Hello. My name is Damian Garcia, and I am on the sex offender registry. According to my understanding of F.S. 943.04354, there are 4 primary conditions that must be met in order to be "considered" for removal, those being that a) the victim be over 14 (mine was 15). B) the defendant be no more than 4 years older (I was 18). C) the sex had to be consentual in nature (the court has a "love letter" from the victim and the victim's statement corraborates my own) and d) isolated incidence.
I have represented myself since sentencing. (PD that got me my plea deal)
I have filed 11 motions, and was granted 10. The eleventh being removal from the registry. Although my particular case CLEARLY meets the four corners of the law, the judge sided with the prosecution in their request for a Psycho-sexual evalution. I had no problem with this, except that it had to be with a SPECIFIC therapy group: The REACH program. Now, the state had to have known that I nearly violated my probation for refusing to adhere to their counseling standard (I refused to address myself as pedophile, because I'm not one). I asked the judge if I could instaed take the evalution from my therapist, who probation had later assigned me to see. The judge would not allow it. I went to MY therapist anyways, paid $1k for the eval, and took the results to court. This NEW judge ( the judge that had, from it's inception presided over my case was no longer hearing motions- trials only) said he would notify by mail of his decision. In less than 24 hours, I recieved the letter: denied.
What (if any) are my options now? Thank you in advance for any help or suggestions you may post.
Attorney Chapman's response:
File a very detailed motion for rehearing stating exactly what the problem is with your getting an evaluation done at REACH. If that doesn't work, you may have to get an evaluation done at REACH. If REACH's evaluation is negative, ask the judge for an evidentiary hearing at which time the judge can hear live testimony from your therapist and from REACH. Maybe the judge will change his mind.
Under Florida Statue 943.04354 can provide a summary of who would qualify for removal of the requirement to register.
I have been convicted of soliciting a minor for sex over the internet (age 15). I pleaded no contest and was adjudicated guilty. I serve my jail time and also serve my probation as well (was 4 years but was cut down to 2 year with good time served). My offense (847.0135(3) was that I solicited sex online with a minor, but there was no victim. (The judge put me on the registry). Is there any way to ask the judge to remove me from the registry? Or would I have to wait 25 years even though my offense technically says that I am not required to be put on the registry?
Attorney Chapman's response:
The judge cannot take you off the registry unless he or she has the statutory authority to do so.
HI ,I MADE A PLEA THAT GAVE ME A CHARGE OF CONSPIRACY TO COMMIT 800.04 ADJUDICATION WITHHELD I BEEN REGISTERING FOR 11YEARS HOW CAN I GET MY PICTURE AND NAME OFF THE REGISTRY WHAT STEPS TO TAKE ...?
Attorney Chapman's response:
Look at Florida statute section 943.04354. The URL for it is:
http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0900-0999/0943/Sections/0943.04354.html
I HAVE A QUESTION SAME AS ABOVE WHEN MY CHARGE IS CONSPIRACY TO COMMIT 800.04 AND IT'S ONLY 2 CASES LIKE THIS IN MY WHOLE COUNTY AND I BEEN ON THE LIST FOR 11YEARS CAN I TRY TO GET IT REMOVE NOW OR DO I HAVE TO WAIT 9 MORE YEARS OR WHAT STEPS MUST BE TAKEN?
Attorney Chapman's response:
Actually, the waiting period is 25 years, not 20 years as your question implies. See Florida statute section 943.0435(11)(a)1. That statute can be found at:
http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0900-0999/0943/Sections/0943.0435.html
I went and read the website and it state if convicted of: my case was not a conviction it was a plead and withheld of judication i was told i could honestly check that i hadnt been convicted of a felony of conspiring to commit i need help to end this i feel im stuck in the system loop if it 25years now what will be after i have done my twenty five it will just keep changing and ill never be free,please do something many people dont need to be stuck like this ...
In 97 I was charged with l&l and spend 3 yrs on paper. Judge Lober released me from paper and I moved out of Florida. Almost 10 yrs later I was granted permission to be removed from the sexual registry. Here is my question.... It was adjudication withheld and I would like to know if I am still considered a felon? I was denied a firearm by the FBI but I was unsure if it was because of some Kansas thing or this charge. I want a normal life! Is there a way to get rid of this thing forever???
Attorney Chapman's response:
1. You are still considered a felon but not a convicted felon since adjudication was withheld.
2. In Florida, the crime of lewd or lascivious behavior cannot be sealed.
I have a friend who was convicted of LEWD ASSAULT/SEXUAL BATTERY. The victim was less than 16, and he was 21. This was in 1998 when he got charged the girl said she was 19 and for years she was trying to help him get this removed becuase she said it was her fault her father caught them in the act and had him arrested is there anything can he file a petition for removal?
Attorney Chapman's response:
Take a look at the following site:
http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0900-0999/0943/Sections/0943.04354.html
My fiance was convicted of lewd/Lascivious battery in 2004 when he was 21 yrs. old, then arrestied for violation (failing a drug test) in 2006. He was sentenced to one year in prison and 13 years of probation, a total of 14 years of supervision (when convicted in 2004). Next year will be the halfway point of his sentence. We have heard that at the halfway point, you can try to get off probation on early termination. He has not used drugs and subsequently passed every drug test since he violated in 2006, and has been gainfully employed, and attended the mandatory counseling as required. He does everything as he is supposed to. This label was not meant for him, I have known him since we were 5 years old, he is not a pedifile, although he will be considered one for the rest of his life. How likely do you think it is that we can get his probation terminated early? I've tried my best to come to terms with the fact he will be registered as a sex offender for the rest of our lives, but the probation is just too much. He was really someone who got involved in drugs and the wrong crowd. Also, his grandmother has recently fallen very ill and the dr.'s have given her less than 60 days to live. Due to his restrictions he cannot leave the county without permission from his probation office, or leave the state without permission from the judge. His grandmother lives in Georgia. We have written the judge and followed up almost every day, with no help or response from them. It has been over two weeks since we made the request. What can we do to try and get this permission granted so we can see her before she dies?? Thank you so much for your help. If you are able to help with the termination of probation, can you estimate the cost?
Attorney Chapman's response:
He would have a better chance of getting off probation if he hadn't violated in 2006. However, it is certainly worth a try.
Regarding your fiance traveling to Georgia, he will need to do more than simply write a letter to the judge. He will need to file a motion or else submit an agreed order allowing him to travel there.
I have a friend who was seduced by a 14yo girl who posed as over 18yo, and the guy was 22yo. It was a mom and daughter on vacation to Florida. The young lady told her mom he was 17yo, and her mom even flew back to TX and left money for her daughter and her "new boyfriend" so they can stay the remaining days left on their vacation rental, wherein he assured he would bring her back home safely.
Turns out, after the young lady attempted to seduce him into "going all the way with her", after he brought her home to TX he realized she must be a minor as he realized she had only engaged in "necking and petting" which they engaged in while at Disney. He immediately too her to her mother, announced that he suspects her daughter is a minor, after which time, the family rose up and in order to protect against being charged for child neglect, called police crying "sexual assault", the young lady ran to her room crying and has since regretted ever trying to seduce him into having sex with her.
He now lives as an "SO" like a vagabond with 666 mark of the BEAST as a young man with great potential, his life is essentially OVER. Is there ANYTHING he can do?
Attorney Chapman's response:
It does not appear that your friend qualifies to have his name removed from the sex-offender registry pursuant to the "Romeo and Juliet" exception. If you would like to read that particular law, click on the following URL:
http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0900-0999/0943/Sections/0943.04354.html
I am currently registering having violated statute 847.0135(3). I served my 5 years probation and Ajudication was withheld when I made my plea deal. I was 18 at the time of the offence and the "victim" was supposedly 14. My question is whether there is a way to be taken off registration. My lawyer says that at the time my case was going on, there was a law that would allow me to try to be taken off after 10 years from being put on probation. The problem is that the law is no longer in effect and my lawyer says when the time comes that we can try and have the court recognize the law that was in effect and hopefully go from there. Is there anything I can do now that my lawyer and I haven't thought of? Thank you
Attorney Chapman's response:
Look at Florida's "Romeo and Juliet" law:
http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0900-0999/0943/Sections/0943.04354.html
Nice website! A lot of good information on here. I was wondering being an attorney, do you think that these sex offender laws are unconstitutional? It is our right to earn a living without unreasonable government interference in the constitution. I agree most people do need to be on the registry but there are a lot of people who could do good in society if giving the chance to earn a degree and get a state license.