sb157_Committee_sub_LC_29_3721S_4.html
09 LC 29 3721S

The Senate Judiciary Committee offered the following substitute to SB 157:


A BILL TO BE ENTITLED
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 require the Department of Corrections to forward certain information to sheriffs; to provide for registration and reporting by sexual offenders who do not have a residence address; to provide for taking of palm prints and DNA samples in certain cases; to change certain provisions relative to relief from registration; to change provisions relating to residence, workplace, and volunteering restrictions; to change provisions relating to the time frame a sheriff has to update certain information; to remove annual registration fees; to change registration criteria for persons moving to this state; to change certain penalty provisions; to change restrictions on volunteer and religious activities; 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 a mechanism for certain elderly and disabled sexual offenders to petition the superior court to be released from certain residency requirements; 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; and
(3) Any evidence introduced by the defense.
Sexual history polygraph information shall also be admissible for this purpose.
(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:
"(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. The term shall include any place where the sexual offender sleeps, such as a shelter or structure that can be located by a street address or other description, including, but not limited to, apartments, buildings, motels, hotels, homeless shelters, and parked vehicles."
Paragraph (6) of subsection (a) is revised as follows:
"(6) 'Child care facility' means all public and private pre-kindergarten facilities, day-care centers, child care learning centers, preschool facilities, and long-term care facilities for children. Such term shall not include private, in-home child day care which is not licensed by this state."
Divisions (a)(9)(A)(i) and (a)(9)(A)(ii) are revised as follows:
"(i) Kidnapping of a minor, except by a parent, when the offense by its nature is a sexual offense against a minor or an attempt to commit a sexual offense against a minor;
(ii) False imprisonment of a minor, except by a parent, when the offense by its nature is a sexual offense against a minor or an attempt to commit a sexual offense against a minor;"
Divisions (a)(9)(B)(i) and (a)(9)(B)(ii) are revised as follows:
"(i) Kidnapping of a minor, except by a parent, when the offense by its nature is a sexual offense against a minor or an attempt to commit a sexual offense against a minor;
(ii) False imprisonment of a minor, except by a parent, when the offense by its nature is a sexual offense against a minor or an attempt to commit a sexual offense against a minor;"
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."
Subparagraph (a)(16)(K) is revised as follows:
"(K) E-mail addresses, and usernames, and user passwords; and"
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 in Code Section 42-1-12, relating to the State Sexual Offender Registry, by revising paragraphs (1) and (8) of subsection (b) as follows:
"(1) Inform the sexual offender of the obligation to register, the amount of the registration fee, and how to maintain registration;"
"(8) At least 15 days prior to such release, obtain Obtain and forward any information obtained from the clerk of court pursuant to Code Section 42-5-50 to the sheriff's office of the county in which the sexual offender will reside; and"

SECTION 5.
Said article is further amended in Code Section 42-1-12, relating to the State Sexual Offender Registry, by revising paragraph (3) of subsection (c) as follows:
"(3) Forward the sexual offender's fingerprints and photograph At least 15 days prior to the sexual offender's release from prison, placement on parole or supervised release, or within three business days after a sexual offender's placement on probation, the following information shall be forwarded to the sheriff's office of the county where the sexual offender is going to reside:
(A) The sexual offender's fingerprints, palm print, and photograph;
(B) The sexual offender's crime of conviction, including conviction date and the jurisdiction of the conviction; and
(C) The sexual offender's address;"

SECTION 6.
Said article is further amended in Code Section 42-1-12, relating to the State Sexual Offender Registry, by revising paragraph (6) of subsection (e) 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 7.
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 who does not have a residence address, 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 weekly in person to the sheriff of the county in which he or she sleeps on a day specified by the sheriff during 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 county in which the sexual offender resides;
(4) Renew the required registration information with the sheriff of the county in which the sexual offender resides by reporting in person to the sheriff within 72 hours prior to such offender's birthday each year to be photographed, palm printed, and fingerprinted and provide a noninvasive DNA sample if none has previously been taken; provided, however, that the taking of palm prints and fingerprints shall be optional with the sheriff;
(5) Update the required registration information with the sheriff of the county in which the sexual offender resides or sleeps 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 and to the sheriff of the county to which the sexual offender is moving within 72 hours prior to any change of residence address and. The sexual offender shall give information regarding a change in employment location or a change in attendance at an institution of higher education to the sheriff of the county to which the sexual offender is moving within 72 hours after establishing the such new residence place of employment or attendance at an institution of higher education; and
(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 excluding ensuing periods of incarceration."

SECTION 8.
Said article is further amended in Code Section 42-1-12, relating to the State Sexual Offender Registry, by revising subparagraph (g)(2)(B) as follows:
"(B) Have had ten years elapse since his or her release from prison, parole, supervised release, or probation completed his or her sentence, including any period of parole or probation."

SECTION 9.
Said article is further amended in Code Section 42-1-12, relating to the State Sexual Offender Registry, by revising paragraph (1) of subsection (h) as follows:
"(h)(1) The appropriate official or sheriff shall, within 72 hours three working days after receipt of the required registration information, forward such information to the Georgia Bureau of Investigation. Once the data is entered into the Criminal Justice Information System by the appropriate official or sheriff, the Georgia Crime Information Center shall notify the sheriff of the sexual offender's county of residence, either permanent or temporary, the sheriff of the county of employment, and the sheriff of the county where the sexual offender attends an institution of higher education within 24 hours of entering the data or any change to the data."

SECTION 10.
Said article is further amended in Code Section 42-1-12, relating to the State Sexual Offender Registry, by revising paragraphs (2), (3), (4), (6), (7), (12), (13), and (14) of subsection (i) as follows:
"(2) Electronically submit and update all information provided by the sexual offender within two three working days to the Georgia Bureau of Investigation in a manner prescribed by the Georgia Bureau of Investigation;
(3) Maintain and post a list of every sexual offender residing in each county and electronically submit and update such list for posting or electronic access:
(A) In the sheriff's office;
(B) In any county administrative building;
(C) In the main administrative building for any municipal corporation;
(D) In the office of the clerk of the superior court so that such list is available to the public; and
(E) On a website maintained by the sheriff of the county for the posting of general information;
(4) Update the public notices required by paragraph (3) of this Code section within two three working days;"
"(6) Update the list of sexual offenders residing in the county upon receipt of new information affecting the residence address of a sexual offender or upon the registration of a sexual offender moving into the county by virtue of release from prison, relocation from another county, or conviction in another state, federal court, military tribunal, or tribal court. Such list, and any additions to such list, shall be delivered, physically or electronically, within 72 hours three working days of updating the list of sexual offenders residing in the county, to all schools or institutions of higher education located in the county;
(7) Within 72 hours three working days of the receipt of changed required registration information, notify the Georgia Bureau of Investigation through the Criminal Justice Information System of each change of information;"
"(12) If required by Code Section 42-1-14, place any electronic monitoring system on the sexually dangerous predator and explain its operation and cost; and
(13) Provide current information on names and addresses of all registered sexual offenders to campus police with jurisdiction for the campus of an institution of higher education if the campus is within the sheriff's jurisdiction; and
(14) Collect the annual $250.00 registration fee from the sexual offender and transmit such fees to the state for deposit into the general fund."

SECTION 11.
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 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."

SECTION 12.
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, and 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.
(4) The board shall notify the sex offender by first class mail of its determination of send a copy of its risk assessment classification and shall send a copy of such classification to the Georgia Bureau of Investigation, the Department of Corrections, the sheriff of the county where the sexual offender resides, sexual offender, 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, 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.
(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 13.
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 adding a new paragraph to subsection (a) to read as follows:
"(4) '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."

SECTION 14.
Said article is further amended by adding a new Code section to read as follows:
"42-1-16.
A superior court may issue an order releasing an individual from any residency requirements of this article if the individual or someone acting on behalf of the individual petitions the superior court of the jurisdiction in which such individual resides to be released from the residency requirements of this article, the court finds by a preponderance of the evidence that the individual does not pose a substantial risk of perpetrating any future dangerous sexual offense, and the individual:
(1) Resides in a hospice facility, skilled nursing home, residential care facility for the elderly, or nursing home;
(2) Is totally and permanently disabled as such term is defined in Code Section 49-4-80; or
(3) Is otherwise seriously physically incapacitated due to illness or injury."

SECTION 15.
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 16.
All laws and parts of laws in conflict with this Act are repealed.