West Palm Beach Criminal Lawyer Blog : Ronald Chapman: West Palm Beach Criminal Lawyer | Florida Criminal Attorney: DUI, Assault & Battery, Felonies | Criminal Law Firm

          One question that I am often asked is whether it is possible for someone to get his name removed from Florida's sex offender list and, if so, how? 

          In an attempt to answer that question, I looked at the frequently-asked-questions page from the section of the Florida Department of Law Enforcement ("FDLE") website pertaining to sexual offenders and predators where I found the following information:

          Question number 16 asks, "How can I get my name off the sexual predator/offender list?"

           Answer:

          "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."

          Question number 36 asks, "How do I find out more information regarding Florida statute section 943.04354, often referred to as the 'Romeo & Juliet' law?"

          Answer:

          "Effective July 1, 2007, Florida Statute 943.04354, entitled 'Removal of the requirement to register as a sexual offender or sexual predator in special circumstances”, allows certain individuals who specifically meet the criteria of the statute to petition or move the court for relief from the requirement to register as a sexual offender and sexual predator (Florida statute section 943.0435 or Florida statute section 775.21, respectively). Several criteria are specified, including that the victim of the offense was age 14 - 17 and that the offender was not more than 4 years older than the victim. Among other criteria, the sole offense requiring registration must be either Florida statute section 794.011 or Florida statute section 800.04. The court may grant or deny any such motions or petitions for removal. Please see the complete statutory text for Florida statute section 943.04354 for further details. Additionally, see [question number 37 below entitled] 'How do I petition for removal from the registry based upon the new Romeo & Juliet law (Florida statute section 943.04354)? Do I need an attorney to make this petition?' for information on how to petition the court."

          Question number 37 asks, "How do I petition for removal from the registry based upon the new Romeo & Juliet law (Florida statute section 943.04354)? Also, do I need an attorney to make this petition?"

          Answer:         

          "Petitioning for removal from the registry in this capacity must be initiated by the offender or predator (or a legal representative) by completing the appropriate process for the circuit court of jurisdiction. Petitioning for removal of the requirement to register in this capacity is not within the purview of the registry. As provided in the statute, the offender/predator must move or petition the clerk of court of jurisdiction where the offender/predator was or will be sentenced. The exact process for submitting such a petition differs depending upon the requirements of a particular court. As such, you should contact the individual court or jurisdiction directly for questions regarding how to petition the court.

          There is nothing provided in the statute that requires such petitions to be filed by an attorney or legal representative, therefore self-representation is possible. You should make an informed decision regarding whether or not to seek legal assistance or representation based upon your personal circumstances.

          Please note that this relief from sexual offender or predator registration requirements does not extend to eligibility to have your criminal history records sealed or expunged, pursuant to Florida statute section 943.059 or Florida statute section 943.0585."

          Question number 43 asks, "I am a registered sexual predator. Why can I no longer petition the court for removal of my predator designation?"

          Answer:

          The federal Adam Walsh Child Protection and Safety Act of 2006 removed the ability for sexual predator meeting specific criteria from petitioning the court for removal of the designation of sexual predator. In accordance with this federal legislation, effective July 1, 2007, Florida law was amended and removed the ability for a sexual predator to petition the court for removal from the registry."

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          Recently, police here in Florida have been going to different pharmacies and obtaining copies of the pharmacy records of individuals suspected of doctor shopping.  After some of those individuals were later charged with violating Florida's doctor-shopping law, they argued to a judge that their rights were violated when the police obtained their records without a search warrant.

         One such case in which this occurred was State of Florida v. Cater in which Ms. Carter argued that:

          1.  The warrantless seizure of her prescription records violated her constitutional rights to privacy and due process of law.

          2.  Her pharmacy could not legally give the police her records unless she was first given notice and the opportunity to either consent to the release of her records or else have the issue decided by a judge. 

          The trial judge agreed with Ms. Carter and granted her motion to suppress her pharmacy records that were seized by the police without a warrant.

           However, Florida's First District Court of Appeal reversed the lower-court's ruling on several different grounds including:

          1.  Neither Florida statute 893.07(4) nor 465.017(2)(a) require the police to obtain a subpoena or search warrant before seizing someone's pharmacy records if the police reasonably suspect that person of being involved in doctor shopping.  Additionally, neither of these statutes require that a patient be given prior notice that the police intend to seize her pharmacy records.

          2.  The federal Health Insurance Portability and Accountability Act ("HIPPA") does not govern the conduct of law enforcement officers or prosecutors.  However, even if it did govern such conduct, it was not violated in this particular case.  And even if HIPPA had been violated in this particular case (which it was not), the proper remedy would be for a court to impose fines and imprisonment, not suppress evidence.

           3.  Lastly, although article I, section 23 of the Florida Constitution does indeed provide for a right of privacy, that right is not absolute insofar as a patient's right to privacy in her medical records is concerned.  That right must yield to a compelling government interest such as the control and prosecution of criminal activity.

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