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.