People suspected of a crime or facing criminal charges may be familiar with the names of certain legal concepts and phrases but not truly understand their meaning and application. Many people have heard “ex post facto” or “fruit of the poisonous tree.” Few know exactly when these phrases apply to their cases and, if they do, precisely how to use them. An experienced Tampa Bay criminal defense lawyer, however, knows exactly how these and other concepts work and how to use them to your maximum benefit.
Arguments about ex post facto laws are an area where many pro se criminal defendants go wrong, raising the argument in circumstances where no ex post facto violation exists. A recent sex offender registry case from our south, however, is an example where the accused did have a valid ex post facto argument.
The defendant, A.C., was a Venice man convicted of a sex crime in 2016. At that time, the court sentenced him to incarceration followed by one year of probation. The sentence also required him to register as a sex offender. In the summer of 2019, while on probation, A.C. was arrested for another internet sex crime.
The state charged the man with violating the sex offender registration statute (Section 943.0435.) Specifically, the state accused the man of failing “to report an electronic mail address or instant message name” to the Department of Law Enforcement. That may sound like a minor technicality, but the state has designated this crime as a third-degree felony carrying a potential punishment of as much as five years in prison and a $5,000 fine.
Complicating the state’s position, the sex offender registration statute (as it existed in 2019) specifically said that an offender’s obligation under the law only kicks in after the offender has “been released… from a sanction imposed by any conviction,” and that a “sanction” included things like fines, probation, community control, parole, conditional release, and control release. A.C. argued that, since he was still on probation, he had not been “released” from his sanction, did not yet have an obligation to register, and couldn’t be guilty of violating Section 943.0435.
Legislation from 2021 Amends the Trigger Requirements for Registering
New legislation in 2021 complicated matters in A.C.’s case. In a 2020 case, State v. James, the Court of Appeal affirmed the dismissal of a “failure to register” case where the offender had finished his period of incarceration but had not paid his $10,000 fine. The legislature amended the statute in 2021 specifically to declare that the State v. James ruling was “contrary to legislative intent and that a person’s failure to pay a fine does not relieve him or her of the requirement to register as a sexual offender pursuant to” Section 943.0435. The state cited that 2021 amendment in arguing that the law permitted it to bring a failure-to-register action against A.C.
The appeals court, however, rejected that position. Section 943.0435 (as it existed in 2019) did not impose an obligation to register before the offender completed his probation, so failing to do so while on probation could not be a valid instance of the crime of failure to register. The 2021 amendment to the statute made it clear that an offender’s release from incarceration triggered the obligation and an offender could be guilty of failure to register while he was still on probation. The court recognized that applying this 2021 amendment to A.C.’s case would be a clear ex post facto violation. “To construe the preamendment statute in the manner the State suggests (that is, to align the preamended version’s operation with the postamended version’s text) violates the cardinal prohibition of ex post facto criminal laws: it criminalizes what had been noncriminal conduct after-the-fact.”
Florida has some of the toughest sex crimes laws in the country and Florida prosecutors pursue them doggedly. If you’re on trial for (or suspected of) a sex crime, you need an aggressive and experienced lawyer on your side. The zealous and knowledgeable Tampa Bay criminal defense attorneys at Blake & Dorsten P.A. are here to help when a sex crime charge threatens to derail your job, your reputation, and your very freedom. To find out more, call us today at (727) 286-6141 to schedule your free initial consultation.