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sex offender registry post conviction relief Sex Crimes, Sex Offenders

Discussion in 'Criminal Charges' started by dereksirois, Apr 5, 2010.

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  1. dereksirois

    dereksirois Law Topic Starter New Member

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    I made the unfortunate mistake of sleeping with a girl that was 2 years and one month younger than me when I first turned 18 while drinking and at a party. After my arrest, the parents decided that the consequences of the charges against me were not fair and tried to drop the charges, but the state had to pursue them anyway. I was sentenced to 3 years of probation,but also had to register as a sex offender, even after probation. Unknown to myself at the time, my lawyer filed a motion to declare the statute that governs the sex offender registry in Florida was unconstitutional in my case. The judge accepted the motion and stated that during the period of time that the motion is being figured out, I would not have to register as a sex offender. Well up to this date, almost 11 years later, there is nothing in that file period that states that there was a final judgement or decision that declared that statute either constitutional or unconstitutional, so the motion is still open. Also there is no language in the court order signed by the judge that states that the order will expire by its own terms either. Then in 2005 I was convicted of a violation of 943.0435 F.S (failure to register as a sex offender) for not having the correct address. I was sentanced to 3 years in prison. When I got out, I was looking on the clerk of court's website and I saw that this motion to declare sex offender registry unconstitutional was granted by the judge, and was never finalized. Then I went to the courthouse and had the file pulled and looked at it myself. I called the attorney that I had for that failure to register case and asked him if he was aware that this was in my file. He said that he was not aware of it, and was pretty much told me that he did not care and he would not help me for free, even though his lack of due diligence got me three years in prison. I paid this guy almost $5000. I was pretty angry because If I took the failure to register to trial I probably would have won the case or the state would have dropped the charges for failing to register.Also, I brought this to the attention of the Florida Department of Law Enforcement who governs and runs the sex offender registry, and the did a legal review on my case then decided to put me back on the registry because they said since my case was closed because I completed my probation, the court order was dead. But I have not found any case law or status federal or state that say that court orders die when cases are closed, especially when the things within the order have not been ruled on or decided. I need some help determining if I possibly have a case for getting the conviction of failing to register off my record, and possibly get some type of compensation from my attorney for his laziness, and some relief from the state for sending me to prison for 3 years. I drew up a motion which I will paste below. It explains everything in detail. Can somebody tell me what they think.


    IN THE CIRCUIT COURT OF THE FIRST JUDICIAL
    CIRCUT IN AND FOR OKALOOSA COUNTY FLORIDA


    STATE OF FLORIDA, Case Nos. ========

    Plaintiff, 05-CF-1700

    v.

    =========,

    Defendant,

    _______________________/


    MOTION TO VACATE SENTENCE AND JUDGMENT

    Comes now, the Defendant, =======, Pro Se, Pursuant to the provisions of Rule 3.800 (a), FLA. R. CRIM. P, and moves this Honorable Court to vacate the sentence imposed and in support of said motion, the Defendant states the following:

    Statement of the facts

    1 In January of 2000, the Defendant was convicted and ordered to serve a term of 3 years of probation for a violation of F.S 800.4. Normally violation of this crime requires the Defendant to register as a sexual offender pursuant to F.S 943.0435.

    2 On January 13th 2000, Defense council filed a motion to declare F.S 943.0435 unconstitutional as to the Defendant.

    3 On January 24th 2000, the Honorable Judge Robert G Barron granted the motion to declare F.S 943.0435 unconstitutional. The Judge’s order clearly stated that all of the requirements of F.S 943.0435 were to be waived as to the Defendant until is determined whether or not the application of the requirements of F.S 943.0435 is unconstitutional as to the Defendant.

    4 To this day, there is not an order, judgment, or finding (verbal or written), that states that there was a decision made as to the unconstitutionality of applying F.S 943.0435 to the Defendant, nor is there an order (verbal or written), that cancelled, voided, or nullified the above mentioned order, in existence.

    5 This Motion is still pending due to the lack of any final decision in determining whether or not it is unconstitutional as to the Defendant.

    6 On February 27th 2006 The Defendant was convicted and ordered to serve a term of 34.3 months in the Department of Corrections for failing to register as a sexual offender as outlined in F.S 943.0435.


    Argument

    On February 2006, the Defendant was convicted and ordered to serve a term of 34.3 months in prison for violating F.S 943.0435.
    The Defendant alleges that this conviction and incarceration was illegal and unfounded based on the following:

    The state alleged that the Defendant was not properly registered as a sexual offender in accordance with F.S 943.0435. Unknown to the Defendant and council, there was an order granting the defense’s motion to declare F.S 943.0435 unconstitutional by the Honorable Judge Robert G. Barron that waived all of the requirements of F.S 943.0435 until it is determined whether or not those requirements were unconstitutional. See exhibit (A). To this day, there is not, in existence, an order, (verbal or written) that cancelled, voided or nullified the order that waived the requirements of the aforementioned statute as to the Defendant. Based on the facts listed above, the Defendant alleges that the motion in question is still open and active as of January 13th 2000. Based on the above mentioned facts, The Defendant insists that he was wrongfully convicted and sentenced to prison for this crime that he did not commit.


    Relief Sought

    The Defendant prays that this honorable court vacates the unlawful conviction and sentence that was imposed on him.



    Certificate of Service


    I --------, the defendant, swear and affirm that copies of this document have been forwarded to the following recipients:

    Don Howard
    Okaloosa Count Clerk of Courts
    1250 N. Eglin Pkwy
    Shalimar, FL 32579

    Office of the State Attorney
    1B 9th Avenue, Shalimar, FL 32579









    Thanks for your time.
     
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  2. army judge

    army judge Super Moderator

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    The state won't let you wiggle off the hook on thus one. If they do, they'd have to compensate you for your inceration.

    You can try, but when you lose, they'll snatch you up for another fail to register charge. In the interim, you'd better register, because they'll use your perceived recalcitrance to lock you up again!!!

    Even if a circuit court judge overturned your case, the state would appeal it. The sexual offender registration law isn't going to be overturned anytime soon. Have you seen what's happening to kids in Florida?




    Sent from my iPhone using Tapatalk
     
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  3. dereksirois

    dereksirois Law Topic Starter New Member

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    That's exactly what I want. I want to be compensated because I was sentenced to prison for failing to register when there was a court order signed by the same judge that said I didn't have to register until a decision was made as to weather or not it was constitutional. The same statute in his court order is the same thing that I was charged with. My main question is weather or not there is some type of law that says that court orders expire after a certain amount of time, or they expire when a case is closed. Since I haven't found any laws that says court orders die when cases closed, I assume that since the judge, either by oversight or ignorance did not make a decision as to the statute being unconstitutional or not, that court order that was signed by him in 2000 is still valid to this day due to the fact that there was no action on it. It says " during the pendacey of the defendants motion to declare 943.0435 unconstitutional, the aforementioned statute shall be waived as to the defendant". It's a shame that I did not find out about this before I was sent to prison. Do you think that being that there is no determination made on that court order, its still active? Also I've read that all law regarding sex offenders in Florida is "substantive Law" Which to my understanding means that it cannot be applied retroactively. So any new laws wouldn't affect it. I'm no expert but I've read a whole lot. Do you think that my court order is still good? Thanks for taking time to read all of this I've wrote. I know it's a lot. I will always follow the laws now. I don't want to go back to the big house again. I'm going to stay registered as long as they require it, but I just want them to go by the rules that were written.
     
    Last edited: Apr 5, 2010
  4. army judge

    army judge Super Moderator

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    You've got what seems to be a sound argument on the law.

    That's a good position to make your case.

    I'll have to do a little research on this one.

    On it's face you've got a constitutional argument.

    But, I want to know more about Florida criminal procedure and appellate arguments.

    The fact that they've put a stone wall in your way makes me think we can get your conviction reversed.

    Does that mean, however, a new trial or a remand?

    When jharris352 looks at it, I'm sure he'll have a thought or two.

    I love upsetting legal apple carts.

    I'll get back to you.


    Sent from my iPhone using Tapatalk
     
  5. siroisderek

    siroisderek New Member

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    Thanks for taking a gander at it. I really appriciate it. I've done a lot of research on this thing. Sometimes its overwhelming though all that reading. It gets kind of confusing at times. The only thing I'm worried about is that I signed a plea agreement and agreed that I could not appeal my case after 30 days of my sentance. But I've found stuff in in fl crimp that states that I can appeal if I have newly discovered evidence or if my lawyer on that case did not excercise "due dilligence" . When he or his paralegal researched my case for the failure to register they NEVER looked at ANYTHING in the first case that made me become a sex offender in the first place. After I got out and confronted him on the whole thing after I discovered that I went to prison for nothing he said he didn't feel that it was important to look at that case since it was closed. I can't belive I paid for that. That law for a direct appeal is 3.800a or 3.800b according to my notes. I hope that I can wiggle into that loophole.
     
  6. army judge

    army judge Super Moderator

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    Well, the plea agreement does alter things.
    Those plea deals essentially waive all appellate rights one may have.
    The leave to take an appeal is very narrow and time delimited.
    That brings us back to the old standby, ineffective assistance of counsel.
    But, with a plea agreement, the judge elicits an allocution from you agreeing to the fact that you were satisfied with your counsel.
    That effectively shuts the door for an appeal for IAC, too!
    There just might be no way out of this.
    That is the very reason they require you to allocute in open court on the record.

    Have you investigated expunging your record?
    You can attack it two ways: 1) Appeal and reversal or 2) Expungment.



    http://research.lawyers.com/Florida/Criminal-Process-in-Florida.html
     
  7. siroisderek

    siroisderek New Member

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    Couldn't I argue that I was happy with my attorney's service at the time but not after my sentance because it wasn't till then that I then discovered the huge oversight he made that could have prevented me from going to prison? I didn't know that I had IAC until after I got out and saw that he did not even look at my original case that started it all. Think about this, if I would have flashed that court order in the face of the state and the judge and moved for a dissmissal, do you think I would have gotten it? The court order clearly said 943.0435 was waived until further notice, the charges against me were violations of 943.0435. If an attorney overlooks or misses such a huge and obvious piece of evidence and completely ignored my previous case that staerted this all, wouldn't that be considered? I mean sure I was happy, hell he said I could have gotten five years but got me a cap of 33.4 months. I thought he did the best he could at the time. I was happy to have 3 instead of five. It sounds like what you said is pretty much true though. I wonder how the newly discovered evidence thing might come into play? Thanks
     
  8. raskalnikov

    raskalnikov New Member

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    Definately file a grievance against your former attorney.
     
  9. dereksirois

    dereksirois Law Topic Starter New Member

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    I am in the process of that right now. I'm waiting for a packet from the Florida Bar Association that allows me to file a complaint. They did tell me that I might be able to get back some of the legal fees associated with my case. They told me on the phone that I have a pretty legitimate complaint, but I would have to do it in writing.
     
  10. dereksirois

    dereksirois Law Topic Starter New Member

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    I do have a question if anyone can answer it. If I successfully get a complaint added to this lawyer's record via the FL bar, would that be enough for me to possibly open my case back for a direct appeal. I did say that I was happy with the service of my attorney at the time, but that's only because he told me that I could get 5 years but I only have to do 33.4 months. Sure, at the time I was satisfied, but It wasn't until after that I got out and finished my sentance and looked at all of my files and saw this big oversight. I did not know that he did not even look at my previous case. Do you think that my acknowledgement and agreement that I was happy with my service when the judge asked me if I was happy will prevent me completely from re-opening my case and fighting it? Could I argue that there were new facts and evidence in my case that I was unaware of until I got out.
     
  11. army judge

    army judge Super Moderator

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    New information is always grounds for appeal, assuming the court agrees with you.

    You can generally seek relief in the federal system faster than most state systems.

    You might have a constitutional argument that can be made.

    The Innocence Project might take a look at your case.

    Google their name and go to their website.

    You can also call them.

    They like cases such as yours.

    They'll know if you have grounds for appeal and where to bring the appeal.

    They'll also get you your money.

    They don't charge anything if they agree to take your case.

    Barry Scheck is one of their founders.

    He's a good attorney and is genuinely concerned with wrongful convictions and imprisonments.


    Sent from my iPhone using Tapatalk
     
  12. dereksirois

    dereksirois Law Topic Starter New Member

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    I have a buddy who was recently arrested and charged with aggravated assault with intent to commit a felony. The story he told me was like this. His girlfriend went to the neighbor's house to use the phone. The neighbor was rude to his girlfriend. When she went home she told him what happened. When he went to the neighbor's house to ask why he had such an ill attitude towards her, he got mad and said some unkind things to my friend which sparked an argument. According to my friend's story, they did have a verbal battle but he said that he did not threaten any harm to the neighbor. The neighbor called the Sherriff's office and filed a complaint and stated that my friend said that he came over to his house with a pistol and a knife and threatened to shoot and stab him. After making the report the cops left. My buddy called the sherriffs office to ask if he had a warrant, they said yes and he turned himself in. He was released on bond and is waiting to go to court. Neither the neighbor or my friend have any other witness besides themselves that saw what happened. The cops did not find any type of firearm on him or in the house. How strong is this case against him?
     
  13. army judge

    army judge Super Moderator

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    This is a classic he said, he said.
    People go to prison on cases like this everyday.
    If your friend has said nothing to anyone about this, he might not get convicted.
    If he can't afford an attorney, he should ask the court to appoint one for him.
    He's going to need an attorney in a case like this.

    In the interim, he should keep his mouth closed.
    He should make no statements about this case.
    He should discuss this case with no one.
    He should do nothing until he has spoken with an attorney.

    This is a serious charge.
    The police must have something to press this case.
    The neighbor might have video or a recording of the incident.
    You just never know.
     
  14. jharris352

    jharris352 New Member

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    I don't think your friend is telling you the whole story. He said she said aside, police generally like to have more than that to go on. I would be willing to bet your friend was a whole lot louder than he wants you to know, that there were threats made, and that someone other than the "victim" saw/heard them.

    Finally I'm guessing this isn't your friend's first rodeo. He needs to learn to let things go. Going over to the neighbor's house as all to address "disrespect" shows a certain about of thug in him. Thugs go to jail, wise men let it ride and go home at night.
     
  15. dereksirois

    dereksirois Law Topic Starter New Member

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    Yeah. I kind of have a feeling that he might be leaving out some key details. I thought about what they had and It does not make sense to me.
     
  16. ctops

    ctops New Member

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    IMG_20180719_0001 | Violence
    IMG_20180719_0002

    Yes I was reading this thread from 2010, I could not send a PM to member dereksirois and I was wondering how his case ended up ?
    sex offender registry post conviction relief

    As you can see I has a similar plea agreement of which the state honored from my original sentence from 2001, in 2003 I had a technical violation of my probation conditions which I got the max sentence for the crime F.S. 847.0138 (2001), during the course of my collateral attack I learned the charge was just a big lie but the state waited for to get time barred for filing for judicial enforcement now I can only go after the plea through civil litigation which no attorney will do because it's the state of Florida and a illegal prosecution. Please comment.
     
  17. army judge

    army judge Super Moderator

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    As you've discovered the only possible remedy available to you requires you to hire an attorney.

    Nothing anyone on this site can do for you, other than repeat that which you know.

    God luck, mate.
     
  18. ctops

    ctops New Member

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    I have my law degree, oh the damage is done for me the best part of my life and career is destroyed because of this sex offender implications now I'm am a advocate of sorts.

    I stumbled upon this site and the member's question from 2010 but could not pm him, I guess you have to pay a fee just to pm other members, seems sort of counter productive in my opinion and normally an issue like that just screams against free speech and expression, so if I leave my email I'll probably be banned.
     
  19. Highwayman

    Highwayman Well-Known Member

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    Maybe you should be.

    The poster probably doesn't wish to accept PM's or more likely isn't here anymore.

    Expecting to contact a poster who posted here EIGHT YEARS ago is not realistic. I would think you'd be smarter then that if you have a "law degree".
     
  20. army judge

    army judge Super Moderator

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    No one is charged so much as one red cent on this site, mate.

    The site owner limits such private communication to avoid people from being harassed, scammed, or annoyed.

    All communication must be out in the open for all to read.
     

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