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

          I frequently get calls and emails from people telling me how difficult it is for them or for a family member to comply with various sex-offender restrictions.  Based upon the following article that appeared on January 22, 2010 in the Miami Herald, it appears that legislators in Miami-Dade County, Florida are being told the same thing and that they had the good sense to ease some of the restrictions in that county.

MIAMI-DADE OK's new sex offender law

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          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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       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.

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          It seems that the thorny issue of where registered sex offenders should be allowed to live just won't go away.  In 2007, I wrote an article entitled "Sex Offenders:  Where Can They Live?," and in 2008 I wrote an article entitled "Where Can You Live in Florida if You Are a Registered Sex Offender?"  Palm Beach Post staff writer John Lantigua has now written an article entitled "Registered sex offenders:  Where can they live?"

          In his article, Mr. Lantigua reports that just last week the American Civil Liberties Union of Florida sued Miami-Dade County over an ordinance that prohibits individuals convicted of sex crimes involving minors from living within 2,500 feet of such places as schools, playgrounds, and school bus stops.  According to the article, however, the ACLU is not suing out of a concern for the safety of those sex offenders living under a bridge but rather out of a concern for the safety of the general public.

          In that regard, the executive director of the ACLU of Florida is quoted as saying that "[p]eople have to realize that making them live under that bridge has created a more dangerous situation.  Because of the conditions, some of these individuals are absconding, evading supervision.  These ordinances interfere with the Department of Corrections' ability to keep track of them.  This is a crisis situation."

          Apparently, the Florida Department of Corrections--the agency in charge of supervising sex offenders--agrees.  A spokesperson for that agency is quoted as saying that "[o]ur concern is for public safety.  If they are homeless there is more of a chance they will abscond.  There are already 91 homeless offenders around the state, mostly in South Florida, and the problem is getting bigger."

          When two unlikely bedfellows such as the ACLU and the Florida Department of Corrections agree on something as serious as where registered sex offenders should be allowed to live, perhaps it's time to change the law.

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          In the two cases of United States of America vs. Powers and United States of America vs. Buckius, both Mr. Powers and Mr. Buckius were indicted for failing to register as sex offenders as required by the Sex Offender Registration and Notification Act (otherwise known as "SORNA").  After being indicted, both defendants filed motions asking a United States District Judge from the Middle District of Florida to dismiss the charge of failing to register as a sex offender on the ground that SORNA was unconstitutional.  Both defendants argued that SORNA was unconstitutional because it violated the Commerce Clause of the U.S. Constitution insofar as SORNA did not regulate activities that substantially affected interstate commerce and thus was beyond the scope of Congress's power under the Commerce Clause.

          Although it is rare for a judge to declare a law unconstitutional, the judge in both Powers's and Buckius's cases did just that!  Not surprisingly, however, the U.S. Attorney's Office for the Middle District of Florida decided not to go down without a fight.  It appealed both decisions to the United States Court of Appeals for the Eleventh Circuit.  That particular appellate court, which tends to be very conservative, overruled both Powers and Buckius and in so doing relied upon another Eleventh Circuit appellate case--United States of America v. Ambert--which was issued just twenty days before Powers and Buckius were decided.

          In the Ambert case, the defendant, like defendants Powers and Buckius, was indicted for failing to register as a sex offender pursuant to SORNA.  Ambert subsequently filed a motion asking a federal district judge to dismiss the charge against him on the following six grounds:

          1.  He was not bound by the criminal provisions of SORNA because his relevant travel dates occurred before the United States Attorney General decided on February 28, 2007 that SORNA's registration requirements apply to all offenders convicted before July 27, 2006;

          2.  SORNA is unconstitutional because it violates the Non-delegation Doctrine of the U.S. Constitution;

          3.  SORNA is unconstitutional because it violates the Ex Post Facto Clause of the U.S. Constitution;

          4.  SORNA is unconstitutional because it violates the Commerce Clause of the U.S. Constitution;

          5.  SORNA is unconstitutional because it violates the Due Process Clause of the U. S. Constitution; and

          6.  SORNA is unconstitutional because it violated Mr. Ambert's right to travel.

          Unfortunately for Mr. Ambert, the federal district judge from the Northern District of Florida who decided his case did not find any of his arguments persuasive and therefore denied the motion to dismiss the charge pending against him.  Eventually, the Eleventh Circuit Court of Appeals not only agreed with the lower-court judge that Ambert's case should not be dismissed but also relied upon Ambert in overturning Powers and Buckius.

          The decisions in Ambert, Powers, and Buckius are just three examples of how tough the law is today in the United States when it comes to the issue of sex offenders and the registration requirements for such individuals.

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          In 2007, the Georgia Supreme Court ruled as unconstitutional a Georgia law that prohibited registered sex offenders from living within 1,000 feet of child care facilities, schools, churches, or other areas where children congregate. 

          The case, Mann v. Georgia Department of Corrections, arose when Anthony Mann, a registered sex offender in Georgia, filed a lawsuit asking that the law mentioned above be declared unconstitutional because it authorized the taking of his home without his being financially compensated in violation of both the United States Constitution and the State Constitution of Georgia. 

          Mann also asked that this law be declared unconstitutional because it prohibits registered sex offenders from working at any business in Georgia that is located within 1,000 feet of a church, school, or child care facility.  He argued that this law likewise authorizes the unconstitutional taking of his business, just as it does his home, without his being financially compensated.

         The Georgia Supreme Court did ultimately declare that portion of the law unconstitutional which prohibited registered sex offenders from living within 1,000 feet of child care facilities, schools, churches, or other areas where children congregate.  However, it did not rule unconstitutional that portion of the same law which prohibits registered sex offenders from working at businesses located within 1,000 feet of a church, school, or child care facility.

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          The Florida Department of Law Enforcement website answers the question regarding where registered sex offenders and sexual predators may live in Florida as follows:

          "In very general terms, barring any exceptions as so outlined in Florida Registration Statute, if a subject is a registered offender, who has a released status (meaning he/she is no longer serving any sanctions for the crime), and his/her offense date was committed before 10/1/2004, there is no Florida Statutory restriction on where he/she can live based upon his/her designation as an offender/predator.

          However, Florida Statute 794.065, provides that certain individuals who have been convicted of a violation of s. 794.011, s. 800.04, s. 827.071, or s. 847.0145, with an offense date on or after October 1, 2004, where the victim of the offense was less than 16 years of age, cannot reside within 1,000 feet of any school, day care center, park, or playground. Please see the complete statutory text for F.S. 794.065 for further information.

          Furthermore, there may also be municipal and/or county ordinances in your area regarding sex offenders/predators. Contact the appropriate entities in your local area (i.e. your local Sheriff's Office and/or Police Department) to obtain this information. For contact information for each of the Sheriff's Offices and Police Departments click on Links from the registry website.

          Finally, if you are a sexual offender/predator who is still serving sanctions imposed, such as probation, parole, or community control under the [Florida] Department of Corrections (DC), you are required to follow the Conditions of Probation ordered by the judge in accordance with Florida statute. Restrictions are normally listed in these conditions. You should contact your probation officer directly for more information."

          Some city and county ordinances in Florida make it extremely difficult--if not impossible--for sexual offenders to live lawfully in their communities.  Take Miami for example.  Last year, CNN reported how some sex offenders in that city have resorted to living under a bridge in order to comply with Miami's sex offender registration laws:

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          On July 25, 2008, the Alaska Supreme Court declared Alaska's Sex Offender Registration Act unconstitutional.  In a blog that I posted on this website on June 5, 2008 entitled "Sex Offender Registration:  Is It Punishment?," I observed that "[i]n the case of Smith v. Doe, the [United States Supreme] Court ruled that Alaska's sex-offender registration statute did not violate the Ex Post Facto Clause of the U.S. Constitution because the Alaska State Legislature's intention in passing that particular law was not to punish sex offenders but rather to create a 'civil, nonpunitive regime.' " I concluded that posting by opining that although courts may call sex offender statutes nonpunitive, they certainly seem punitive to me (and apparently to many others based upon the response that I have had to that posting).

          It appears that the Alaska Supreme Court shares my view because it recently declared Alaska's Sex Offender Registration Act ("ASORA") unconstitutional in the case of John Doe v. State of Alaska.  In John Doe, Alaska's High Court stated in relevant part that:

          We first ask “[w]hether the sanction involves an affirmative disability or
restraint.”  The state argues that ASORA involves neither because it imposes no
physical restraint, has obligations less harsh than occupational debarment — which the
Supreme Court has held to be non-punitive — and, in the Supreme Court’s words,
“restrains [no] activities sex offenders may pursue but leaves them free to change jobs
or residences.”

          But even though the statute imposes no physical restraints, we agree with Justice Stevens’s dissenting comments in Smith that ASORA “impose[s] significant affirmative obligations and a severe stigma on every person to whom [it] appl[ies].”  First, ASORA compels affirmative post-discharge conduct (mandating registration, reregistration, disclosure of public and private information, and updating of that information) under threat of prosecution.  The duties are significant and intrusive, because they compel offenders to contact law enforcement agencies and disclose information, some of which is otherwise private, most of it for public dissemination.
Furthermore, the time periods associated with ASORA are intrusive.  Sex offenders convicted of an aggravated sex offense or two or more sex offenses must re-register quarterly for the rest of their lives; all other offenders must re-register annually for fifteen years.  All sex offenders who change residences must notify the state trooper office or municipal police department closest to their new residences within one working day.  As we stated in Doe v. State, Department of Public Safety (Doe A), “ASORA thus treats offenders not much differently than the state treats probationers and parolees subject to continued state supervision.”

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        Anyone who is a registered sex offender or a registered sexual predator in Florida should read Florida statute section 943.04354 which is entitled "Removal of the requirement to register as a sexual offender or sexual predator in special circumstances."

        This statute states in part that "a person shall be considered for removal of the requirement to register as a sexual offender or sexual predator only if the person:

(a) Was or will be convicted or adjudicated delinquent of a violation of s. 794.011 or s. 800.04, or the person committed a violation of s. 794.011 or s. 800.04 for which adjudication of guilt was or will be withheld, and the person does not have any other conviction, adjudication of delinquency, or withhold of adjudication of guilt for a violation of s. 794.011 or s. 800.04;

(b) Is required to register as a sexual offender or sexual predator solely on the basis of this violation; and

(c) 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."

        Section 943.04354 further describes how people who committed their offenses before July 1, 2007 can also avoid having to register as a sexual offender or predator.

        Because the registration requirements for sexual offenders and predators are so intrusive and burdensome here in Florida, any sex offender or sexual predator who can lawfully avoid such requirements should certainly try to do so.

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Many people agree to go on probation for sex offenses without knowing how strict the conditions of probation are for sex offenders in Florida.  In many cases, it is only when they go to the probation office for their first meeting that sex offenders are told about the special conditions of probation that apply to them.  By then, however, it is too late for the probationer to change his mind about agreeing to go on probation in the first place.  Therefore, it is essential that anyone faced with the possibility of being placed on sex offender probation understand the conditions of his probation that he or she will be expected to comply before agreeing to go on probation.  Florida statute section 948.30 lists the requirements for people who are placed on sex offender probation.  Ten of those requirements are:

1.  A mandatory curfew from 10 p.m. to 6 a.m.

2.  If the victim of the sex crime was under the age of 18 when the crime occurred, the probationer may not live within 1,000 feet of a school, day care center, park, playground, or other place where children regularly congregate.

3.  The probationer must actively participate in and successfully complete a sex offender treatment program with qualified practitioners specifically trained to treat sex offenders at the probationer's own expense.

4.  The probationer may not contact the victim of his crime either directly or indirectly unless such contact is approved by the victim, the probationer's therapist, and the sentencing judge.

5.  If the victim of the crime was under the age of 18 when the crime occurred, the probationer may not have any contact with a person under the age of 18 unless certain exceptions apply.

6.  If the victim of the crime was under age 18 when the crime occurred, a probationer may not work for pay or as a volunteer at any place where children regularly congregate including schools, day care centers, parks, playgrounds, pet stores, libraries, zoos, theme parks, and malls.

7.  A probationer may not view, access, own, or possess any obscene, pornographic, or sexually stimulating visual or auditory material, including telephone, electronic media, computer programs, or computer services.

8.  At least once per year, a probationer must take a polygraph examination.

9.  A probationer must keep a driving log, and he is prohibited from driving a motor vehicle alone without obtaining the prior approval of his probation officer.

10.  A probationer may not obtain or use a post office box without getting the prior approval of his probation officer.

These are just some of the requirements for sex offenders who are placed on probation in Florida.  Anyone faced with the prospect of going on sex offender probation should thoroughly familiarize himself with all of the requirements contained in Florida statute section 948.30.

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Sex offender registration statutes are fairly recent, however, and some registered sex offenders have argued that they should not have to register with FDLE because they committed their crimes before the sex offender statute was passed into law in the 1990's.  What difference does that make you might ask?  There is a concept in the law called ex post facto which means that a law cannot ordinarily punish conduct that was committed before that law went into effect.  For example, if someone committed a sex crime in 1990 but the sex offender registration did not go into effect until 1993, such a person might well argue that he should not have to register as a sex offender because he committed his crime before the sex offender registration law went into effect.

Although I personally find this argument to be persuasive, the United States Supreme Court does not.  In the case of Smith v. Doe, the High Court ruled that Alaska's sex-offender registration statute did not violate the Ex Post Facto Clause of the U.S. Constitution because the Alaska State Legislature's intention in passing that particular law was not to punish sex offenders but rather to create a "civil, nonpunitive regime."

Since Smith v. Doe was decided in 2003, several Florida appellate courts have cited to that particular case in ruling that Florida sex offenders must also register with FDLE even if the crimes for which they were convicted were committed before the Florida sex-offender registration law went into effect.

In spite of all these cases to the contrary, Florida sex offender registration requirements still seem like punishment to me.

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Where can convicted sex offenders live?  This is becoming an increasing problem as laws are continually being passed that limit where convicted sex offenders can live.  For instance, in Florida, persons convicted of certain sex offenses are not permitted to live within 1,000 feet of any school, day care center, park, or playground. 

The following story appears on the blog entitled Sex Offender Issues and vividly describes the plight of a sex offender who lives in Tampa and who is trying to find a place to live:

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