AK: Alaska Supreme Court overturns 2006 conviction

The Alaska Supreme Court last week overturned the conviction of a 62-year-old Ketchikan man who had been found guilty in 2006 of failure to register as a sex offender.

In its April 25th opinion, the court writes that the original offense for which ____ ____ was convicted occurred in the 1980s, before the State of Alaska passed the Alaska Sex Offender Registration Act. That 1994 law required convicted sex offenders to register with the state, even if the offense took place before 1994. Full Article

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It is a good start at least the courts are catching up and saying that is is unjust.

It sounds like this court called registration a criminal statute, not a civil requirement. Very interesting. Did we miss something in 2008?

Case Name: People v. Marinelli , District: 6 DCA , Case #: H039416
Opinion Date: 3/27/2014 , DAR #: 3920
Case Holding:
A defendant convicted of attempted lewd and lascivious acts on a child under 14 years (Pen. Code,§§ 664, 288, subd.(a)) is eligible for relief under Penal Code section 1203.4, subdivision (a). In 2008, appellant pled no contest to attempted lewd and lascivious acts on a child under 14 years (Pen. Code,§§ 664, 288, subd.(a)) and was granted formal probation. After successfully completing probation, he filed for relief under section 1203.4, subdivision (a), which was granted. The prosecution then appealed. Held: Affirmed. Section 1203.4, subdivision (a) permits a defendant who has successfully completed probation to withdraw his plea and receive a dismissal of the conviction. In subdivision (b), certain offenses are exempted from the statute’s relief, including violations of section 288. On its face, the statute does not expressly except attempted violations of section 288. Applying rules of statutory construction, the court observed that the statute references only violations, not attempted violations, and that it is well established that an attempt is an offense separate and distinct from the completed crime. So, under the plain language of the statute, section 1203.4, subdivision (b) does not apply to attempted violations of section 288, subdivision (a). This finding also comports with the legislative intent behind the statute. The history of section 1203.4, subdivision (a) indicates that the purpose of the specified exclusion is to prohibit those convicted of specified sex offenses to expunge his or her record under section 1203.4, thereby conserving significant investigative resources that would otherwise be expending in handling petitions filed by individuals convicted of sex offenses. This purpose is not thwarted if the section applies only to completed sex offenses and not attempts.the ca courts also recently provided more means of relief.

The introductory sentence is missing from that case summary probably because I missed it when copying it. But the summary is from CCAP resources, which is the California Appellate site. http://www.capcentral.org

So, basically, the court is not just inferring but ruling that the registry itself is a punishment, not a regulatory device as posited by Smith v. Doe. The state attorney was extremely negligent in not bringing out that fact, as now this decision can actually be used in the re-challenge to the registry.

Can we go to the federal court and say “remove the megan’s law it is a punishment?