LA: Person convicted of sex offense must register despite post-probation dismissal

Source: 6/30/21

NEW ORLEANS (AP) — A Louisiana Supreme Court ruling means a man will have to continue to register as a person convicted of a sex offense even though his video voyeurism conviction was set aside after he served probation.

The high court, in an order dated Tuesday, refused to reconsider a May ruling in the case of Mark A. Davidson.

Court records show he pleaded guilty in 2005 in Monroe and was ordered to serve three years of probation. After the probation was completed the court agreed to dismiss the conviction.

But the high court ruled that state law still requires Davidson to register as a person convicted of a sex offense.

Davidson had moved to Florida and was considering a return to Louisiana in 2016 when he filed suit to bring an end to his registration requirement in the state where he was convicted. A state district judge agreed the requirement should end. But an appeal court and, this year, the state Supreme Court, disagreed.

The higher courts acknowledged conflicts in state law but said that ultimately, a conviction set aside after probation is not the same as an acquittal, and that Davidson remains obligated to register if he returns to the state.

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So same as in CA. It’s a serious conflict and can only exist because being on the registry “isn’t punishment”

You can all guess what’s next. Even after you served your time on the registry and are removed, you will still be required to register. Or maybe since your original charge was a felony and reduced, you still will be identified as a felon. Or maybe the sentencing guidelines will be increased and we all have to go back to jail or prison because we didn’t serve enough time. This swirling toilet bowl of crap will never end.

In the US, it has always been that when there is a conflict in law – criminal law in particular – the conflict is resolved against the government. Yet again, longstanding precedent doesn’t apply to those convicted (even when set aside, as here) or simply accused of sex offenses.

I would definitely make a federal habeas case out of this.

I’ve not read the full opinion and rulings but my gut tells me this man had signed the standard waiver of rights on this issue.

I don’t agree that something dismissed should still require registration. That said, I think this court made the statutory interpretation and applicability to this person correctly within the scope of what was asked of them. Where I disagree – and courts seem to be doing this too much – is that the statute itself should be unconstitutional because it violates the separation of powers between the legislative/executive and the judicial branch. In other words, it should be the judicial branch who decides what the dismissal actually means and how it applies to the registration on an individual basis. The legislature essentially legislated out this function of the court, stepping on its toes by deciding that even when a court dismissed a case in this instance the person is still convicted for the purposes of registration. In other words they legislated out a core function of the Judiciary, to be able to dismiss a case in order to effectively make it as if a particular conviction never happened. It’s concerning that this isn’t addressed here and that the Judicial branches continue to allow legislation that erodes their function. Here’s a link to the decision.

HUGHES, J., dissents with reasons.

Louisiana Code of Criminal Procedure article 893(E)(2) provides that “[t]he dismissal of the prosecution shall have the same effect as acquittal.” (emphasis added).

The per curiam references “more specific” statutes that would supersede the “general” law, but this is a concept for civil analysis, not criminal. Criminal statutes are to be strictly construed against overly broad and untimely enforcement, and the rule of lenity should apply.

Jury: “We the jury in the above titled action find the defendant not guilty.”
Judge: “The defendant is hereby sentenced to life imprisonment without the possibility of parole.”

I was listening to a podcast about defamation and it reminded me about the registry and 1203.4.

1203.4 has three immunities:
i) case set aside (dismissed)
ii) accusation/information against defendant dismissed
iii) released from all penalties and disabilities

The only way you get onto the registry is via conviction. With 1203.4, your conviction is set aside, implying it no longer exists. Also, 1203.4 cites your accusation is also dismissed. Yet, the registry continues to use your information as current along with the fact you were convicted of a sex crime.

Remember, California’s has a “right to privacy” written specifically in its constitution where its citizen has the right to pursue and obtain privacy. If your case is dismissed, then you should have the right to say you were never convicted of a crime or a sex crime. This is also supported by the dismissal of the accusation/info against the defendant.

This means the registry is defaming a person who legally earned a case dismissal as well as all of the contents pertaining to the case be dismissed to be current information.

California’s 1023.4 does more than dismiss a case as it erases the accusation as well as relieve one of penalties and disabilities. Also, California’s Constitution specifically states its citizen has a right to pursue and obtain privacy.

Important Dates

1958: Kelly v Municipal relieved the duty to register b/c in-person reporting was quasi-criminal.
1972: “Right to privacy” was amended into the CA Constitution
2003: Smith v Doe stated the registry was statutory, not punitive
2007: PC 290.007 negated Kelly v Municipal, forcing a 1203.4 and CoR to potentially get relief from the registry

All the cases that tried to use Kelly v Municipal after 2007 always went after the punitive aspect and the courts lowered their standards to say in-person reporting wasn’t punishment.

Why not use the constitutional “Right to Privacy” along with 1203.4’s “the court shall thereupon dismiss the accusation or information against the defendant” to expose 290 is using invalid information and is unconstitutionally being applied to all 1203.4 recipients? This bypasses the punishment argument and onto privacy issues as well as defamation problems.

How can one say I was never convicted of a crime, but then being on the registry says you still are convicted and convicted of a sex crime? These two pieces of information cannot co-exist, especially when 1203.4 states, “the court shall… ” The word “shall” carries a huge significance in legal law and contracts.