09
LC 29 3742
House
Bill 571
By:
Representatives Ralston of the
7th,
Keen of the
179th,
and Golick of the
34th
A
BILL TO BE ENTITLED
AN ACT
AN ACT
To
change and enact provisions of law relating to classification of sexual
offenders, sexual offender registration, and restrictions on sexual offenders'
residences, workplaces, and activities; to amend Code Section 5-6-35 of the
Official Code of Georgia Annotated, relating to appeals requiring an application
for appeal, so as to make such Code section applicable to appeals from decisions
of superior courts reviewing a decision of the Sexual Offender Registration
Review Board; to amend Article 1 of Chapter 10 of Title 17 of the Official Code
of Georgia Annotated, relating to procedures for sentencing in criminal cases,
so as to provide that, with respect to sexual offenses committed after a certain
date in this state, classification shall be by the sentencing court rather than
the Sexual Offender Registration Review Board; to amend Article 2 of Chapter 1
of Title 42 of the Official Code of Georgia Annotated, relating to
classification and registration of sexual offenders and regulation of the
conduct of such offenders, so as to revise provisions relating to registration
of sexual offenders; to change certain definitions; to provide for registration
and reporting by sexual offenders who do not have a residence address; to revise
provisions relative to classification of sex offenders; to revise certain
definitions; to change provisions relative to the process of classification by
the Sexual Offender Registration Review Board and review of such
classifications; to provide for procedure and review; to provide for other
related matters; to provide for an effective date; to repeal conflicting laws;
and for other purposes.
BE
IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION
1.
Code
Section 5-6-35 of the Official Code of Georgia Annotated, relating to appeals
requiring an application for appeal, is amended by adding a new paragraph to
subsection (a) to read as follows:
"(5.1)
Appeals from decisions of superior courts reviewing decisions of the Sexual
Offender Registration Review
Board;"
SECTION
2.
Article
1 of Chapter 10 of Title 17 of the Official Code of Georgia Annotated, relating
to procedures for sentencing in criminal cases, is amended by adding a new Code
section to read as follows:
"17-10-6.4.
(a)
As used in this Code section, any term which is defined in Article 2 of Chapter
1 of Title 42 shall have the meaning specified in that article.
(b)
With respect to a sexual offender convicted in this state of a crime committed
on or after the effective date of this Code section, the sentencing court shall
determine the likelihood that a sexual offender will engage in another crime
against a victim who is a minor or a dangerous sexual offense. A sexual
offender shall as a part of the sentencing process be placed into Level I risk
assessment classification, Level II risk assessment classification, or sexually
dangerous predator classification based upon the court's review of:
(1)
A risk assessment profile of the offender to be completed by the Department of
Corrections prior to sentencing, which profile has been approved for such use by
the Board of Corrections;
(2)
Any evidence introduced by the prosecution;
(3)
Any evidence introduced by the defense; and
(4)
Sexual history polygraph information, if available.
(c)
All information considered by the court in its determination of the
classification shall be a matter of public record, unless the court determines
that some specific portion of such information would invade the privacy of a
person other than the sexual offender, in which case the court may enter an
order sealing that specific portion of the record.
(d)
Any appeal of the court's determination of classification shall be combined with
any other appeal arising from the conviction, so that there shall be a single
appeal of all issues in the
case."
SECTION
3.
Article
2 of Chapter 1 of Title 42 of the Official Code of Georgia Annotated, relating
to classification and registration of sexual offenders and regulation of the
conduct of such offenders, is amended in Code Section 42-1-12, relating to the
State Sexual Offender Registry, by revising portions of subsection (a) as
follows:
Paragraph (1) of subsection (a) is revised as follows:
Paragraph (1) of subsection (a) is revised as follows:
"(1)
'Address' means the street or route address of the sexual offender's residence.
For purposes of this Code section, the term
does
shall
not mean a post office
box,
and
homeless
does not constitute an
address."
Subparagraph
(a)(9)(C) is revised as follows:
"(C)
For purposes of
subparagraph
(a)(9)(B) of this Code section, conduct
which is punished as
for
a misdemeanor
or
shall not be
considered a criminal offense against a victim who is a minor, and
conduct which is
prosecuted
adjudicated
in juvenile court shall not be considered a criminal offense against a victim
who is a minor."
Paragraph
(16) of subsection (a) is revised as follows:
"(16)
'Required registration information' means:
(A)
Name; social security number; age; race; sex; date of birth; height; weight;
hair color, eye color, fingerprints; and photograph;
(B)
Address of
any permanent residence and address of any current temporary
residence, within the state or out of
state, and, if applicable in addition to the address, a rural route address and
a post office box;
(C)
If the place of residence is a motor vehicle or trailer,
provide
the vehicle identification number, the license tag number, and a description,
including color scheme, of the motor vehicle or trailer;
(D)
If the place of residence is a mobile home,
provide
the mobile home location permit number; the name and address of the owner of the
home; a description, including the color scheme of the mobile home; and, if
applicable, a description of where the mobile home is located on the
property;
(E)
If the place of residence is a manufactured home,
provide
the name and address of the owner of the home; a description, including the
color scheme of the manufactured home; and, if applicable, a description of
where the manufactured home is located on the property;
(F)
If the place of residence is a vessel, live-aboard vessel, or houseboat,
provide
the hull identification number; the manufacturer's serial number; the name of
the vessel, live-aboard vessel, or houseboat; the registration number; and a
description, including color scheme, of the vessel, live-aboard vessel, or
houseboat;
(F.1)
If the place of residence is the status of homelessness, information as provided
under paragraph (2.1) of subsection (f) of this Code section;
(G)
Date of employment, place of any employment, and address of
employer;
(H)
Place of vocation and address of the place of vocation;
(I)
Vehicle make, model, color, and license tag number;
(J)
If enrolled, employed, or carrying on a vocation at an institution of higher
education in this state, the name, address, and county of each institution,
including each campus attended, and enrollment or employment
status;
(K)
E-mail
addresses,
and
usernames,
and user passwords; and
(L)
The name of the crime or crimes for which the sexual offender is registering and
the date released from prison or placed on probation, parole, or supervised
release."
Paragraph
(17) of subsection (a) is revised as follows:
"(17)
'Risk assessment classification' means the
notification
level into which a sexual offender is placed based on the board's
assessment
classification
of a sexual offender as a Level I risk assessment, Level II risk assessment, or
sexually dangerous predator by the board or a court sentencing under Code
Section 17-10-6.4."
Paragraph
(21) of subsection (a) is revised as follows:
"(21)
'Sexually dangerous predator' means a sexual offender:
(A)
Who was designated as a sexually violent predator between July 1, 1996, and June
30, 2006; or
(B)
Who is determined by the Sexual Offender Registration Review Board
or a court
sentencing under Code Section 17-10-6.4 to
be at risk of perpetrating any future dangerous sexual
offense."
SECTION
4.
Said
article is further amended by revising paragraph (6) of subsection (e) of Code
Section 42-1-12, relating to the State Sexual Offender Registry, as
follows:
"(6)
Is a nonresident
sexual
offender who changes residence from
another
state or territory of the United States
any other
place to Georgia who is required to
register as a sexual offender under federal law, military law, tribal law, or
the laws of another state or
territory,
regardless of when the conviction occurred
or who has
been convicted in this state of a criminal offense against a victim who is a
minor or any dangerous sexual
offense;"
SECTION
5.
Said
article is further amended in Code Section 42-1-12, relating to the State Sexual
Offender Registry, by revising subsection (f) as follows:
"(f)
Any sexual offender required to register under this Code section
shall:
(1)
Provide the required registration information to the appropriate official before
being released from prison or placed on parole, supervised release, or
probation;
(2)
Register in
person with the sheriff of the county in
which the sexual offender resides within 72 hours after the sexual offender's
release from prison or placement on parole, supervised release, probation, or
entry into this state;
(2.1)
In the case of a sexual offender whose place of residence is the status of
homelessness, in lieu of the requirements of paragraph (2) of this subsection,
register in person with the sheriff of the county in which the sexual offender
sleeps within 72 hours after the sexual offender's release from prison or
placement on parole, supervised release, probation, or entry into this state
and:
(A)
Provide the places where he or she sleeps, eats, and works and other places
which he or she frequents; and
(B)
Report every 72 hours in person to the sheriff of the county in which he or she
sleeps, during the sheriff's normal business hours, and update any changes in
the information required under subparagraph (A) of this paragraph;
(3)
Maintain the required registration information with the sheriff of
the
each
county in which the sexual offender
resides or
sleeps;
(4)
Renew the required registration information with the sheriff of the county in
which the sexual offender resides
or
sleeps by reporting
in
person to the sheriff within 72 hours
prior to such offender's birthday each year to be photographed and
fingerprinted;
(5)
Update the required registration information with the sheriff of the county in
which the sexual offender resides within 72 hours of any change to the required
registration information, other than residence
address;
if.
If the information is the sexual
offender's new residence address, the sexual offender shall give the information
regarding the
sexual offender's new residence address to
the sheriff of the county with whom the sexual offender last registered within
72 hours prior to any change of residence address and to the sheriff of the
county to which the sexual offender is moving within 72 hours after establishing
the
such
new residence;
(6)
If convicted of a dangerous sexual offense on or after July 1, 2006, pay to the
sheriff of the county where the sexual offender resides an annual registration
fee of $250.00 upon each anniversary of such registration; and
(7)
Continue to comply with the registration requirements of this Code section for
the entire life of the sexual offender, including ensuing periods of
incarceration."
SECTION
6.
Said
article is further amended in Code Section 42-1-12, relating to the State Sexual
Offender Registry, by revising subsection (n) as follows:
"(n)
Any individual who:
(1)
Is required to register under this Code section and who fails to comply with the
requirements of this Code section;
(2)
Provides false information; or
(3)
Fails to respond directly to the sheriff
within
of the county
where he or she resides or sleeps within
72 hours
of
prior
to such individual's birthday
shall
be guilty of a felony and shall be punished by imprisonment for not less than
ten nor more than 30 years; provided, however, that upon the conviction of the
second offense under this subsection, the defendant shall be punished by
imprisonment
for life
not less than
20 nor more than 50
years."
SECTION
7.
Said
article is further amended by revising Code Section 42-1-14, relating to risk
assessment classifications, as follows:
"42-1-14.
(a)(1)
With respect to crimes committed in this state on or after the effective date of
this paragraph classification of sexual offenders shall be by the sentencing
court as provided in Code Section 17-10-6.4; and no action shall be taken by the
board with respect to such sexual offenders.
(2)
With respect to sexual offenders other than those committing crimes in this
state on or after the effective date of paragraph (1) of this subsection
the
The
board shall determine the likelihood that a sexual offender will engage in
another crime against a victim who is a minor or a dangerous sexual offense.
The board shall make such determination for any sexual offender convicted on or
after July 1, 2006, of a criminal act against a minor or a dangerous sexual
offense and for any sexual offender incarcerated on July 1, 2006, but convicted
prior to July 1, 2006, of a criminal act against a minor.
In addition,
any sexual offender who changes residence from another state or territory of the
United States to this state and who is not already designated under Georgia law
as a sexually dangerous predator, sexual predator, or a sexually violent
predator shall have his or her required registration information forwarded by
the sheriff of his or her county of registration to the board for the purpose of
risk assessment classification.
Such
determination shall not be required to be made by the board until January 1,
2007; provided, however, that such persons shall be subject to this Code
section.
(3)
A sexual offender shall be placed into Level I risk assessment classification,
Level II risk assessment classification, or sexually dangerous predator
classification based upon the board's assessment criteria and information
obtained and reviewed by the board. The sexual offender may provide the board
with information including, but not limited to, psychological evaluations,
sexual history polygraph information, treatment history, personal, social,
educational, and work history, and may agree to submit to a psychosexual
evaluation or sexual history polygraph conducted by the board. If the sexual
offender has undergone treatment through the Department of Corrections, such
treatment records shall also be submitted to the board for evaluation. The
prosecuting attorney shall provide the board with any information available to
assist the board in rendering an opinion, including, but not limited to,
criminal history and records related to previous criminal history. On and after
July 1, 2006, the clerk of court shall send a copy of the sexual offender's
conviction to the board and notify the board that a sexual offender's evaluation
will need to be performed. The board shall render its recommendation for risk
assessment classification within:
(1)
Sixty days of receipt of a request for an evaluation if the sexual offender is
being sentenced pursuant to subsection (c) of Code Section
17-10-6.2;
(2)
Six months prior to the sexual offender's proposed release from confinement if
the offender is incarcerated; and
(3)
Forty-five
days of receipt of the required registration information if the sexual offender
has entered this state from another state and registered as a sexual
offender.
Sixty days of
receipt of the required registration information from the sheriff when the
sexual offender changes residence from another state or territory of the United
States to this state and is not already classified.
(4)
The board shall
send a copy
of its
notify the sex
offender by first class mail of its determination
of risk assessment classification
and shall send
a copy of such classification to
the Georgia
Bureau of Investigation, the Department of
Corrections,
sexual
offender
the sheriff of
the county where the sexual offender
resides, and
the
sentencing court, if applicable.
(b)(1)
If the
sexual offender has been sentenced pursuant to subsection (c) of Code Section
17-10-6.2, after receiving a recommendation from the board that he or she be
classified as a sexually dangerous predator, the sexual offender may request
that the sentencing court set a date to conduct a hearing affording the sexual
offender the opportunity to present testimony or evidence relevant to the
recommended classification. After the hearing and within 60 days of receiving
the report, the court shall issue a ruling as to whether or not the sexual
offender shall be classified as a sexually dangerous predator. If the court
determines the sexual offender to be a sexually dangerous predator, such fact
shall be communicated in writing to the appropriate official, the Georgia Bureau
of Investigation, and the sheriff of the county where the sexual offender
resides.
If the board
determines that a sexual offender should be classified as a sexually dangerous
predator, the sexual offender may petition the board to reevaluate his or her
classification. To file a petition for reevaluation, the sexual offender shall
be required to submit his or her written petition for reevaluation to the board
within 20 days from the date of the letter notifying the sexual offender of his
or her classification. The sexual offender shall have 60 days from the date of
the notification letter to submit information as provided in subsection (a) of
this Code section in support of the sexual offender's petition for reevaluation.
If the sexual offender fails to submit the petition or supporting documents
within the time limits provided, the classification shall be final. The board
shall notify the sexual offender by first class mail of its decision on the
petition for reevaluation of risk assessment classification and shall send a
copy of such notification to the Georgia Bureau of Investigation, the Department
of Corrections, the sheriff of the county where the sexual offender resides or
sleeps, and the sentencing court, if applicable.
(2)
If the
sexual offender received a sentence of imprisonment and was sentenced for a
dangerous sexual offense on or after July 1, 2006, or if the sexual offender is
incarcerated on July 1, 2006, for a crime against a victim who is a minor, after
receiving a recommendation from the board that he or she be classified as a
sexually dangerous predator, the sexual offender may request that the sentencing
court set a date to conduct a hearing affording the sexual offender the
opportunity to present testimony or evidence relevant to the recommended
classification. After the hearing and within 60 days of receiving the report,
the court shall issue a ruling as to whether or not the sexual offender shall be
classified as a sexually dangerous predator. If the court determines the sexual
offender to be a sexually dangerous predator, such fact shall be communicated in
writing to the appropriate official, the Georgia Bureau of Investigation, and
the sheriff of the county where the sexual offender
resides.
A sexual
offender who is classified by the board as a sexually dangerous predator may
file a petition for judicial review of his or her classification within 30 days
of the date of the notification letter, or, if the sexual offender has requested
reevaluation, within 30 days of the date of the letter denying the petition for
reevaluation. The petition for judicial review shall name the board as
defendant, and the petition shall be filed in the superior court of the county
where the offices of the board are located. Within 30 days after service of the
appeal on the board, the board shall submit a summary of its findings to the
trial court and mail a copy, by first class mail, to the sexual offender. The
findings of the board shall be considered prima-facie evidence of the
classification. The superior court may uphold the classification of the board
or if the superior court finds, by a preponderance of the evidence, that the
sexual offender is not a sexually dangerous predator, then the sexual offender
shall be placed into Level II risk assessment classification. The determination
made by the superior court shall be forwarded by the clerk of the superior court
to the board, the Georgia Bureau of Investigation, and the sheriff of the county
where the sexual offender resides or sleeps.
(c)
Any sexual
offender who changes residence from another state or territory of the United
States to this state and who is not designated as a sexually dangerous predator,
sexual predator, or a sexually violent predator shall have his or her required
registration information forwarded by the sheriff of his or her county of
registration to the board for the purpose of risk assessment classification.
After receiving a recommendation from the board that he or she be classified as
a sexually dangerous predator, the sexual offender may, within 30 days after the
issuance of such classification, request a hearing before an administrative law
judge. Such hearing shall be conducted in accordance with Chapter 13 of Title
50, the 'Georgia Administrative Procedure Act.' The decision of the
administrative law judge shall constitute the final decision of the board
subject to the right of judicial review in accordance with Chapter 13 of Title
50. If the final determination is that the sexual offender is classified as a
sexually dangerous predator, such fact shall be communicated in writing to the
appropriate official, the Georgia Bureau of Investigation, and the sheriff of
the county where the sexual offender resides.
(d)
Any individual who was classified as a sexually violent predator prior to July
1, 2006, shall be classified as a sexually dangerous predator on and after July
1, 2006.
(e)(d)
Any sexually dangerous predator shall be required to wear an electronic
monitoring system that shall have, at a minimum:
(1)
The capacity to locate and record the location of a sexually dangerous predator
by a link to a global positioning satellite system;
(2)
The capacity to timely report or record a sexually dangerous predator's presence
near or within a crime scene or in a prohibited area or the sexually dangerous
predator's departure from specific geographic locations; and
(3)
An alarm that is automatically activated and broadcasts the sexually dangerous
predator's location if the global positioning satellite monitor is removed or
tampered with by anyone other than a law enforcement official designated to
maintain and remove or replace the equipment.
Such
electronic monitoring system shall be worn by a sexually dangerous predator for
the remainder of his or her natural life. The sexually dangerous predator shall
pay the cost of such system to the Department of Corrections if the sexually
dangerous predator is on probation; to the
State
Board of Pardons and Paroles if the sexually dangerous predator is on parole;
and to the sheriff after the sexually dangerous predator completes his or her
term of probation and parole or if the sexually dangerous predator has moved to
this state from another state, territory, or country. The electronic monitoring
system shall be placed upon the sexually dangerous predator prior to his or her
release from confinement. If the sexual offender is not in custody, within 72
hours of the decision classifying the sexual offender as a sexually dangerous
predator by
the court in accordance with subsection
(b) of this Code section
or a final
decision pursuant to subsection (c) of this Code section, whichever applies to
the sexual offender's situation,
or Code
Section 17-16.4 the sexually dangerous
predator shall report to the sheriff of the county of his or her residence for
purposes of having the electronic monitoring system placed on the sexually
dangerous predator.
(f)(e)
In addition to the requirements of registration for all sexual offenders, a
sexually dangerous predator shall report to the sheriff of the county where such
predator resides six months following his or her birth month and update or
verify his or her required registration information."
SECTION
8.
Said
article is further amended in Code Section 42-1-15, relating to restriction on
registered offenders residing, working, or loitering within certain distance of
child care facilities, churches, schools, or areas where minors congregate,
photographing of minors, penalty for violations, and civil causes of action, by
revising subsections (a) and (e) as follows:
"(a)
As used in this Code section, the term:
(1)
'Individual' means a person who
is required
to register pursuant to Code Section
42-1-12
at the time
the person violates the provisions of this Code section, is registered, or is
required to register, as a sexual offender in this state, under federal law,
military law, tribal law, or the laws of another state or territory, regardless
of when the conviction
occurred.
(2)
'Loiter'
means:
(A)
To stand idly about;
(B)
To proceed slowly or proceed with many steps; or
(C)
To delay or dawdle.
(3)
'Minor' means any individual who is under 18 years of age.
(3)(4)
'Photograph' means to take any picture, film or digital photograph, motion
picture film, videotape, or similar visual representation or image of a
person.
(5)
'Volunteer' means to engage in an activity in which one could be and ordinarily
would be employed with or without compensation, including, but not limited to,
being involved with or assisting with minors as a teacher or teaching assistant
or with minors who are not supervised by someone other than a sexual offender;
provided, however, such term shall not be construed to preclude participating in
activities limited to persons who are 18 years of age or older or being a
participant in worship services or engaging in religious activities that do not
include supervising, teaching, directing or otherwise participating with minors
who are not supervised by someone other than a sexual
offender."
"(e)
Notwithstanding any ordinance or resolution adopted pursuant to Code Section
16-6-24 or
subsection
(d) of Code Section 16-11-36, it shall be
unlawful for any individual
required to
register pursuant to Code Section 42-1-12
to loiter,
as prohibited by Code Section 16-11-36, at
any child care facility, school, or area where minors
congregate."
SECTION
9.
This
Act shall become effective on the thirtieth day after the date on which this Act
is approved by the Governor or becomes law without such approval.
SECTION
10.
All
laws and parts of laws in conflict with this act are repealed.