Recent Florida Court Decision Limits Removal From Sex Offender Registry
Florida law requires those convicted of sex offenses to register for life as either a sexual predator or sexual offender, depending on the severity of their violation.
In certain circumstances, some offenders who meet statutory requirements may be able to have their information removed from the registry. However, a recent Florida court ruling has made it more difficult for sex offenders to have their names removed from the state's registry.
Florida Requirements for Sex Offender Registry Removal
Under Florida law, only a limited group of sex offenders can file a motion with the court to request that they be removed from the state's sex offender registry. The requirements for eligibility are set out in FSA §943.04354 and include:
(1) The offender must have been or will be convicted, found delinquent or had the adjudication of guilt withheld for committing one of these crimes:
Sexual battery (FSA §794.011)
Lewd or lascivious offense committed upon or in presence of minor (FSA §800.04)
Computer pornography; traveling to meet a minor (FSA §847.01345(5))
(2) The offender must have been required to register as a sex offender based solely on one of those convictions
(3) The victim must have been between 14 and 17 years old and the offender must not have been more than 4 years older than the victim at the time of the violation
(4) Removal from the registry does not violate federal law
In addition, offenders who have had their sentences fully pardoned or who have had their convictions set aside are also entitled to have their information removed from the sex offender registry.
If an offender meets these requirements, then he or she may file a motion with the court. The state also has the right to challenge the motion and request the offender not be removed from the registry. The court then may grant or deny the motion.
If the court grants the motion, then the offender must file a petition with the court requesting removal. If the court then approves the petition, it will issue a court order that then must be provided to the Florida Department of Law Enforcement (DLE). The DLE will then facilitate the removal of the offender's name from the registry.
Miller v State: Sex Act Must Have Been Consensual
A recent decision by the Fifth District Florida Court of Appeal has added a new eligibility requirement that must be met before the court may order information removed from the sex offender registry: the sexual conduct must have been consensual.
In Miller v State, Brian Miller filed a motion requesting his information be removed from the state's sex offender registry. Miller met the statutory requirements for removal: he was convicted of two violations of FSA §800.04, the violations resulted is his mandatory registration and he was less than 4 years older than the 15-year-old victim at the time of the offense.
However, the trial court denied his motion on the grounds that removing his name from the registry would be a violation of federal law because the sexual conduct was not consensual. The appellate court agreed with the trial court's decision and stated that Florida law must be read in conjunction with the federal law, specifically the Adam Walsh Act.
In 2006, the federal government passed the Adam Walsh Child Protection and Safety Act (or "Adam Walsh Act"), which sets out requirements for state sex offender registries, including who must be included and length of registration. This federal law includes one exception for whom must be included on the registries. Referred to as the "Romeo and Juliet" exception, the only people eligible for exclusion from the registry are those convicted of an offense that included a consensual sex act where:
The victim was an adult not under the custodial care of the offender OR
The victim was at least 13 years old and the offender was not more than 4 years older than the victim
In Miller, the Florida courts interpreted the Adam Walsh Act to add a requirement to Florida's list of conditions sex offenders must meet to be removed from the registry — even though the state statute does not expressly state that the sex act must have been consensual.
The result of the Miller case is that it has become almost impossible for an individual convicted of a sex offense in Florida to be excluded from lifetime sex offender registration. Given that sex offenses are defined liberally under state law, it is more important now than ever before to work with a skilled criminal defense attorney if you have been charged with a sex crime.
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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.