Failure to Register, Sex Offender

The Lamest Charge of the Year Award Goes To.....Failure of Sexual Offender to Register (at driver's license officer or sheriff's office). Why?

First of all, it seems downright UN-American to require a citizen who's completed their sentence to jump through numerous hoops--a bureaucratic nightmare of registration requirements that constitute punishment in and of themselves. This reporting requirement is, basically, a life sentence for someone who's already served their sentence. So, before we get into the "crime" of failing to register, what is it exactly that a sex offender must do after his sentence is complete?   Below, I'll explain how the Florida Sexual Predators Act makes life unnecessarily difficult for sex offenders, without actually helping the public (Fla. Stat. 775.21). 

A sex offender must constantly report and register his whereabouts. Florida law requires an offender to report in person to the local sheriff's office, either twice a year or more often depending upon the type of offender conviction (see Florida Statute 944.607(13) for more details). But the fun doesn't stop with the semi-annual trip to the local sheriff's office, because the offender must also report any change in his permanent or temporary residence within forty-eight hours to the sheriff's office. At that time, the sheriff's office must take the offender's picture and take fingerprints, in addition to updating address records. In spite of all of these efforts, the FDLE Sex Offender Registry is often inaccurate and misleading. For more info on the accuracy problems of FDLE's website, read my article FDLE's Sex Offender Database Lies to Florida Citizens.

The information to be provided to the sheriff's office is extensive, and includes the address of any permanent residence or temporary residence, in state or out of state, date and place of employment, vehicle make, model, color, tag number; info regarding enrollment, employment or vocational training at an institution of higher education in Florida, plus the department's name, address, and county of said institution, including each campus attended.

It's not over. Next, within forty-eight hours of reporting to the sheriff's office, he must report in person to the driver's license office of the Department of Highway Safety and Motor Vehicles to secure a driver's license or identification card with the new address. And, to add insult to injury, the offender must pay for these renewals each time! These renewals can add up fast at the current rate of $25, when you consider that the definition of "temporary" residence is a place where you spend a total of five days a year. Yikes. This statute is one of the few to require a citizen to pay the government fees forever. Article I, Section 11 of the Florida Constitution states that "No person shall be imprisoned for debt, except in cases of fraud." But, being to poor to pay this fee may lead to criminal charges....For a more in depth analysis of the constitutionality of such constant fees, take a look at my article "Sex Offenders Will Pay Government Fees Forever."  

Obviously, it is difficult to find a place to live as a registered sex offender.  And, it should come as no surprise that its even more difficult to find a job as a registered sex offender.  So, it should come as no surprise that the registration requirements listed above cost money.  Currently, a sex offender has to pay at least $35 every time they move from one place to another.  This fee goes to the Department of Motor Vehicles, as they create a new driver's license or identification card upon each change of address.  The problem is, many of these folks are living in shelters, and do not have the $35 fee.  For the folks that cannot pay this fee, many are arrested for failing to register.  So far, Florida's court's have been willing to play nice, but I never expect favor towards sex offenders to last very long.  To read a more in depth analysis of whether or not failure to pay can be a defense to failing to register, check out my article "Don't Have $35?  How About an Arrest for Failure to Register as a Sex Offender?".

Can you imagine being arrested because some random DMV worker will not accept your paperwork for renewal? Does anything ever go smooth at a government registration office? In some instances, sex offenders have complied with the statute by reporting to the DMV to issue the required renewal--and yet the DMV refuses to issue an updated license, thus triggering a violation of this law. For more information on just such a case, check out "Sex Offenders Must Cut Red Tape--Or Risk Arrest".

This statute is different because it doesn't require much in the way of "scienter" or "guilty knowledge", such language is not in the statute. This does not mean, however, that the State can convict a defendant for violating this statute without knowledge of it's requirements. The element of knowledge must be included in the charge in order to lawfully convict for this crime (See State v. Giorgetti, 868 So.2d 225 (Fla. 2004)).

It's bad enough that American citizens have paid their dues through the criminal justice system, only to find themselves reporting their movements to the sheriff's office non-stop.  This sort of thing should be a civil citation, but in reality, the most offensive aspect of failing to register is the fact that it is a level 7 offense. Yes, this is lawyer-speak, sorry.  You see, every felony in Florida is assigned a "level", and the higher the level, the more points assessed.  The more points you have, the more likely it is you will go to prison.  If you score over 44 points, prison time is mandatory.  Now, if you're caught beating your wife for the second time, you won't score prison.  If you are dealing drugs to college kids, you won't score prison.  But, if you fail to register, you will score prison.  That's right, failing to register as a sex offender is far more serious than beating your wife repeatedly.  Sad, but true.  A "Level 7" offense carries mandatory prison time, by virtue of it's level (any offense of a level 7 or above is mandatory prison time, practically speaking).

The crime of failing to register as a sex offender is triggered any time a sex offender changes address and fails to notify the proper authorities of such change within 48 hours.  But there's problems with defining exactly what constitutes a change of address, and our legislature has attempted to cover every possible scenario by listing three potential residence options: permanent, temporary, and transient.

Section 775.21(k) of the Florida Statutes defines a permanent address as "a place where the person abides, loges, or resides for 5 or more consecutive days." [emphasis added] Easy enough, right?  If you are a sex offender and establish a permanent residence in the State of Florida (or change such residence if you're already here), you must register with the local sheriff's office and the DMV within 48 hours.  Seems straightforward, right?  Wrong.  If you live in Seattle, Washington, are a sex offender, and chose to spend 5 nights at Disney--you've just made yourself a permanent Florida resident!  Your picture will now be permanently displayed on FLDE's sex offender registry, even though you only spent five nights in Florida.  So, the definition of "permanent" is not so permanent after all.  And, it gets worse.

Section 775.21(l) defines "temporary residence" as "a place where the person abides, lodges, or resides, including, but not limited to, vacation, business, or personal travel destinations in or out of this state, for a period of 5 or more days in the aggregate during any calendar year and which is not the person's permanent address or, for a person whose permanent residence is not in this state, a place where the person is employed, practices a vocation, or is enrolled as a student for any period of time in this state." [emphasis added]  Once again, the problem here is that, if you spend a weekend at the beach in February, then another couple days at the beach in July, you're getting close to having 5 aggregate days which will trigger a reporting requirement.  Remember, a reporting requirement in Florida equates to a lifetime of internet publication on FDLE's sex offender website.  Out of state sex offenders should, probably, not visit Florida as they risk having the FDLE publish their picture forever.  Keep in mind that many states do not publish sex offender registries, so Florida's position on this can be devastating.

The third and final category for consideration is "transient residence".  The definition of transient residence is virtually the same as a temporary residence, and is defined under 775.21(m) as "a place or county where a person lives, remains, or is located for a period of 5 or more days in the aggregate during a calendar year and which is not the person's permanent or temporary address.  The term includes, but is not limited to, a place where the person sleeps or seeks shelter and a location that has no specific street address". [emphasis added]  The subtle change here is that the definition of transient includes a "county" where a person lives, and the definition of permanent and temporary do not include such, they only mention a "place" to live.  So, if you live in the same county for 5 days in aggregate during the year, this section of the statute triggers reporting requirements. 

As you can see from the above definitions, there are numerous housing situations in which an offender falls between the cracks of the above definitions.  One court found described just such a situation, proposing the following: "consider an offender who lives thirty consecutive days in a relative's house, which thereby becomes his "permanent residence" under the statute (because he has resided there for more than five consecutive days).  The offender has a falling out with the relative and goes to a homeless shelter for three consecutive days; at this point, the homeless shelter falls into none of the categories--it is not a permanent, temporary, or transient residence as defined by the statute."  Goodman v. State, 117 So.3d 32 (Fla. 1st DCA 2013).

It is true that the offender must report to the sheriff's office whenever he has vacated a permanent, temporary, or transient residence and failed to establish another--but--how often must he continue to report to the sheriff's office that he's failed to find a place to stay for 5 aggregate days?  And, to add insult to injury, Florida Statute 943.0435(4)(b) requires offenders to provide the sheriff information on where he will be located while trying to find a place to live.  Hum. How is that done, if the offender himself doesn't even know? 

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