Petition for Release from Sex Offender

Registration Requirements and Restrictions*

By: Jessica Ambrose Lexmond

I. Introduction

As of May 20, 2010, the process for petitioning for release from sex offender registration requirements, and from residency or employment restrictions, is governed by Official Code of Georgia Section 42-1-19 (hereinafter O.C.G.A.). The process for petitioning from release from the sex offender registry was formerly controlled by O.C.G.A. §41-1-12(g).[1] The new statute has expanded the scope of eligibility to petition for release from the sex offender registry, as well as residency or employment restrictions.

II. Petitioning for Release

When petitioning for release from sex offender registration requirements, or restrictions on residency or employment, the Superior Court where the defendant was convicted retains jurisdiction. If the defendant was not convicted in Georgia, but now resides in Georgia, jurisdiction will be in the Superior Court of the county where the defendant resides. When petitioning for release on behalf of a defendant the District Attorney of the Circuit where the petition is filed, as well as the Sheriff of that county, must be served. In all circumstances, the Sheriff of the county where the defendant resides must be served with the petition.

III. Eligibility Requirements for Filing a Petition for Release

In order to file a petition to be released from sex offender registration requirements and restrictions the defendant must meet certain eligibility requirements. The defendant must conform to one of four possible categories in order to be eligible to file a petition for release.

First, if the defendant has serious health problems, the defendant will generally meet the eligibility requirement. If the defendant is confined to a hospice facility, nursing home, or residential care facility for the elderly, totally and permanently disabled, or seriously physically incapacitated due to illness or injury the defendant will be eligible to file a petition for release.

Second, if the defendant was sentenced for a crime that became punishable as a misdemeanor on or after July 1, 2006 and meets the sentencing criteria of O.C.G.A. §17-10-6.2(c)(1)(A) through (F) the defendant will be eligible to file a petition for release.

Third, if the defendant was initially required to register solely due to a conviction for kidnapping or false imprisonment involving a minor, but the offense did not involve a sexual offense against the minor, or an attempted sexual offense against the minor, the defendant will be eligible to file a petition for release.

However, most defendants on the sex offender registry will not be included in the first three categories. The fourth category requires first that the defendant has completed all prison, parole, supervised release and/or probation for the offense which required registration. Second, the defendant must also meet the criteria set forth in O.C.G.A. §17-10-6.2(c)(1)(A) through (F).[2]

O.C.G.A. §17-10-6.2(c)(1)(A) through (F) in pertinent part requires that:

A. The defendant has no prior conviction of a sex offense, which includes prior convictions in Federal court, and any other state or territory, which consists of the same or similar elements of the sex offenses prohibited in Georgia.

B. The defendant did not use a deadly weapon against the victim of their offense which would be likely to, or actually did, result in serious bodily injury during the commission of the offense.

C. The court found no evidence of a relevant similar transaction.

D. The victim did not suffer intentional physical harm during the commission of the offense.

E. The offense did not involve the transportation of the victim; and

F. The victim was not physically restrained during the commission of the

offense.[3]

Finally, in order to be eligible under the fourth category, the defendant must either be classified by the Sex Offender Registration Review Board (hereinafter SORRB) as a Level I Risk Assessment Classification[4], or have had ten years elapse since the defendant completed all prison, parole, supervised release, and probation requirements. In allowing Level I Risk Assessment Classified offenders the ability to petition immediately after completion of all prison, parole, supervised release, and probation requirements, rather than requiring a further ten-year period of registration to elapse, the new statute significantly reduces the requirements for eligibility to petition for release. Many defendants who would previously have been required to wait an additional ten years are now eligible to petition for release immediately after completing their sentence.

IV. Petition and Hearing

When considering a petition for release the court may consider any evidence introduced by the defendant, the District Attorney, or the Sheriff. The court has the broad discretion to consider any other relevant evidence as well. Additionally, if the defendant requests a hearing, the court must conduct a hearing.

V. Granting a Petition

If the court finds by a preponderance of the evidence that the defendant does not pose a substantial risk of perpetrating any future dangerous sexual offense the court may grant the petition. In doing so, the court has the ability to issue an order releasing the defendant from registration requirements or residency or employment restrictions, in whole or in part. The court may also grant the defendant’s petition for release for a specific period of time.

When the court grants the petition for release, it must send a copy of any order to the District Attorney and Sheriff of the jurisdiction where the petition for release is filed, as well as the Sheriff of the county where the defendant resides, the Georgia Department of Corrections, and the Georgia Bureau of Investigation. If the petition for release is denied, the defendant may not file another petition for release within a period of two years from the date of the final order denying the petition for release.[5]

VI. Conclusion

The statutes governing sex offender registration requirements and restrictions are constantly changing. Any defendant who is currently on the Georgia sex offender registry should constantly monitor the changes in legislation. In representing defendants charged with sex offenses defense counsel should not only be mindful of the custodial sentence imposed, but should also seek to structure the total sentence so as to provide the defendant with the earliest possibility to petition for release from sex offender registration requirements and restrictions.

*This article was originally published in the Georgia Association of Criminal Defense Lawyer's newsletter: The Georgia Defender, May, 2011.


[1] O.C.G.A. §42-1-12(g): (1) Any sexual offender required to register under this Code section who meets the criteria set forth in paragraph (2) of this subsection may petition the superior court of the jurisdiction in which the sexual offender is registered to be released from the registration requirements of this Code section. The court may issue an order releasing the sexual offender from further registration if the court finds that the sexual offender does not pose a substantial risk of perpetrating any future dangerous sexual offense. (2) In order to petition the court pursuant to paragraph (1) of this subsection, the sexual offender shall: (A) Have been sentenced pursuant to subsection (c) of Code Section 17-10- 6.2; and (B) Have had ten years elapse since his or her release from prison, parole, supervised release, or probation.

[2] Previously, under O.C.G.A. §42-1-12(g), the defendant must have been sentenced under O.C.G.A. §17-10-6.2(c). The new statute is more lenient in that it does not require that the defendant was sentenced in this manner, only that the defendant meets the criteria set forth in O.C.G.A. §17-10-6.2(c)(1)(A) through (F).

[3] See Hedden v. State, 2011 WL 977591, for the Supreme Court of Georgia’s recent interpretation of the phrase “during the commission of the offense” in regards to possession of child pornography.

[4] If the defendant has not been classified by SORRB at the time of the filing of the petition for release, the court shall order the classification to be completed prior to considering the petition for release. SORRB shall render a decision within ninety days of the court’s order. See O.C.G.A. §42-1-14(a)(2)(E).

[5] If the petition for release is denied the appeals process is governed by O.C.G.A. §5-6-35.