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I read this and found it interesting. It seems to say that the sentences in existence at the time of the crime are what must be used. If greater at sentencing, they have to use the old law.

Yes. But I also think that if the right argument was posed and the right client, this ruling could be very helpful in getting SCOTUS overturned.

Wow ! This is great news, I still don't hold out hope that Kennedy will side with sex offenders when it really matters, but this is a huge step!

Forgive my ignorance but doesn't the law already say that it is the laws at the time of the offense that are applied to a case? I know I have encountered this before becasue when FL passed the law that sex offenses have no statute of limitations one thing it says is that the laws of the time will be applied (pretty sure i read that) - also many have been removed from the registry becasue of ex post facto unconstitutionality - so am I missing something here? :-)

You aren't missing anything. Ex post facto protection should be applied to all, keyword SHOULD. However, it is not in most SO's cases. SO's always reoffend according to politicians, so they need to find ever more increasing ways to protect the children, constitution be damned.

If a law or situation is deemed punitive by the courts, then no, they cannot apply them retroactively as that would be an example of an ex post facto law, which is illegal.

If a law is civil in nature, as the registry has been ruled by the courts----a regulatory scheme to protect the public----then it can indeed be applied retroactively.

In Oklahoma, over the years, they added so many more regulations to the original registry that when they added the tier levels the Oklahoma Supreme Court ruled that all the added regulations tipped the balance toward a punitive effect towards the ones that were convicted before the new tier levels went into effect, which was 2007.

As a result, all the registrants convicted before 2007 had to revert back to their original registration requirements which was once a year for a duration of 10 years. When those registrants had fulfilled that requirement, they were removed from the registry.

The Oklahoma Supreme Court ruled that, since all the new laws----"sex offender" on driver's license, residency restrictions, etc----spawning from the registry had made it punitive for the older registrants, it was a violation of the ex post facto portion of the OKLAHOMA CONSTITUION, not the United States Constitution to attempt to enforce those new regulations against those convicted before 2007.

rewdiazepam

There are a couple of things people get confused about some of these ex post facto cases in other states.

The Oklahoma Supreme Court did NOT say the registry was illegal and it DID not rule on whether the new, added SORNA-like regulations were illegal per se.

What it did say was that it was illegal to enforce the new, stricter regulations against registrants who once had a prior registration scheme of registering once a year for 10 years. Those convicted in Oklahoma after 2007 were still under the control of the new law.

Also, the Oklahoma Supreme Court did NOT say that enforcing the new regulations against the registrants convicted before 2007 was unconstitutional according to the United States Constitution. They said it was a violation of the Oklahoma STATE Constitution. Most states' constitutions have an ex post facto clause in them, just as the United States Constitution does.

rewdiazepam

Advocate,
When was Florida's law originally enacted and who has gotten off the Registry there in less than 25 years?

I was not clear - sorry - the FL law that made all sex offenses have no statute of limitations says that the laws at the time will be applied - so say someone got accused and convicted of CP from way back it would be a misdemeanor - the people being released because of ex post facto are in other states - not FL - they will be last if at all I am sure

Rew: If I'm understanding you correctly, then my husband's registry requirements are not the ones currently being used in the state of Oklahoma. He was convicted in 2001 of a statutory rape that occurred in 1998, so does that mean he isn't subject to the tier levels, the lifetime registration, the glaring red flag on his driver's license, etc...?

I looked it up and if FL Constitution has an ex post facto clause I do not find it (not surprised)

TTOWN READ THIS CAREFULLY.

ttown,

This just might be one of the luckiest days of your life.

If your husband was convicted before 2007, then he should only have to register for 10 years in Oklahoma. I don't know when he started registering but he has to only register for 10 years.

The Starkey decision by the Oklahoma Supreme Court in June 2013 ruled that the increase regulations enacted in 2007 created a punitive situation and thus those enhanced regulations could not be applied retroactively to those convicted before 2007 because doing so would be a violation of the ex post facto portion of the Oklahoma Constitution.

They automatically removed me from the Oklahoma registry. It took them 51 weeks to do it, but they finally did. I was convicted in 1992 and my sentence ended in 2000. My first registration date was April 2000, so I was supposed to only register until May 2010.

When did he first begin registering in Oklahoma? If he was convicted in 2001, did he go to prison? If so, when was he released?

No, your husband should not be subject to the tier levels, the mark on the driver's license, or any of the other regulations. If his conviction was before 2007, he has to revert back to his original scheme which was registering once a year for 10 years and all the other registration requirements for him should be as they were when he first begin registering.

The fly in the ointment is that they might try to use the FTR as an additional charge and start the clock back all over again.

When was he convicted of FTR? I hope it was before 2007.

What was his FTR for? What did he do or not do that caused this FTR charge? It may have been a regulation that he should never have been subject to in the first place. Here is what John Dunn said about those situations, take from his page-------------------

6. What if I was convicted of "Failing to register as a sex offender" during a time I was not required to register?
If you have been convicted of "failing to register" during a time that you did not have to register, then you have not actually committed a crime. Therefore, you may be entitled to post conviction release to secure your release from custody or from probation. Additionally, this matter may be removed from your record. If you have any questions, or believe that you may have been wrongfully convicted, please contact our office for a free consultation and case review.


Read these links carefully.

http://tinyurl.com/otfx996

Here is the key passage for that page-----------

[T]he court ruling said Corrections Department officials have been violating the Oklahoma Constitution by retroactively applying state sex offender laws, thereby dramatically increasing the time many convicted sex offenders must remain listed on the registry.

http://tinyurl.com/n3rxe3e

Here is the key passage here-------

"""Therefore, the Department of Correction's retroactive application of the level-assignment amendments to anyone subjected to the Oklahoma registry prior to November 1, 2007, without any express legislative intent to do so, violated the ex post facto clause of the Oklahoma Constitution."""

Here is a link to the appellate attorney from Tulsa who argued and won the Starkey case, John Dunn. He has a full page dedicated to "Frequently asked questions about the Starkey decision."

http://tinyurl.com/lr9fnun

Here are the key passages from that page-----

2. How long do I really have to register?
This is a more complicated question. The date upon which you become "subject to the law" is critical. If you were sentenced by a court in Oklahoma, then the date of your sentencing is the date you "became subject to the law". If you were convicted out of state, the date you entered Oklahoma with the intent to live is the date you "became subject to the law".
If you became subject to the law before April 26, 2004, you have to register for 10 years. To be clear, this time does not count time that you are incarcerated, because you do not register while incarcerated. Presently, it is believed that the registration period is tolled during periods of incarceration.
If you became subject to the law between April 26, 2004 and November 1, 2007, you have to register for a period of 10 years following the completion of your sentence.
If you became subject to the law after November 1, 2007, you are subject to the "level system".
Level 1 registers for 15 years.
Level 2 registers for 25 years.
Level 3 registers for life.

4. What requirements of the Oklahoma Sex Offender Registration Act apply to me?
Paragraph 78 of the Starkey decision indicates that the requirements that were in place at the time you became subject to the act affect you. Arguably, any requirement that has been added since the date that you became subject to the act do not apply to you. If you have questions about this, I recommend that you consult DOC or the person handling your registration to see if they agree that a certain provision does or does not apply to you. If you are not satisfied with their answer, contact an attorney to review your case

Message me.

rewdiazepam

ttowngirl,

I am surprised that you had not heard about the Starkey decision here in Oklahoma. Because of this Oklahoma Supreme Court decision, Oklahoma had to remove almost 3,000 registrants from the registry.

rewdiazepam

Rew: I was aware of the Starkey decision, but I had not fully read it until yesterday to see how it applies to our situation. He was already incarcerated when Starkey was decided. Finding out how it affects our future was a back burner issue for a while, since he wasn't anywhere close to his release date. Now, we are a year away from him coming home and I'm moving into the phase of making things ready for his return. The first step I took in my research was looking him up on the registry, to see what they had his level placed at currently and what amount of time he was required to register. At one time, it said he was a level 1 w/ a 15 year requirement. Then, when my family raised concerns about my daughter accompanying me to visit him, a DHS worker told me that she looked him up and found that he is a Level 2 Aggravated offender w/ a lifetime registry requirement. Now I cannot find him on the registry at all. I don't know if he's been removed from the registry because he is incarcerated or for some other reason. I don't think they would have removed him due to the Starkey decision since he did not start registering until 2008 when he was released from prison. At that time he was required to register every 90 days in person at the Sheriff's Office. In 2011, he had warrants for his arrest on other matters. Going to the Sheriff's Office in person to register with warrants meant certain arrest, so he stopped registering altogether.