In a 4-3 decision, the Colorado Supreme Court has ruled that a criminal defendant was entitled to his request to de-register as a sex offender because he completed the terms of his probationary sentence and therefore no longer had a conviction under the law.
Brian Keith McCulley pleaded guilty in 2000 to two counts of sexual assault. One of the charges, a misdemeanor, resulted in 60 days in jail while the other, a felony, carried a deferred judgment. In Colorado, deferred judgments allow for completion of probation lasting a period of months to years. If the defendant satisfies the conditions of probation, the court dismisses the case.
For his felony, McCulley had to serve four years on probation and register as a sex offender. In 2004, he completed the probation and a judge withdrew McCulley’s guilty plea and dismissed the charge against him.
Years later, in 2016, McCulley petitioned to de-register as a sex offender. The Colorado Sex Offender Registration Act prevents someone who has more than one conviction from requesting such a discontinuation. Prosecutors argued that the law included the deferred judgment as a “conviction,” even though McCulley countered that his record, as it stood, only included one misdemeanor sex crime conviction.
A district court agreed with the prosecution, claiming that the “legislative intent” of the law was to bar even those with deferred sentences from de-registering in the state’s offender tracking system. The Colorado Court of Appeals also reached the same conclusion.
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