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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