November 19, 2008, Introduced by Reps. Alma Smith, Meadows, Warren, Meisner, Condino, Jackson, Garfield and Gaffney and referred to the Committee on Judiciary.
A bill to amend 1994 PA 295, entitled
"Sex offenders registration act,"
by amending sections 8c and 8d (MCL 28.728c and 28.728d), as added
by 2004 PA 240.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 8c. (1) An individual described in subsection (15) who is
convicted before October 1, 2004 of a violation described in that
subsection may petition the court under this section for an order
allowing him or her to register under this act as provided in
section 8d(1).
(2) An individual described in subsection (15)(a) or (b) who
is convicted on or after October 1, 2004 of a violation described
in that subsection may petition the court under this section for an
order allowing him or her to register under this act as provided in
section 8d(1).
(3) This section is the sole means by which an individual may
obtain judicial review of his or her registration requirements
under this act. This subsection does not prohibit an appeal of the
conviction or sentence as otherwise provided by law or court rule.
(4) A petition filed under this section shall be filed in the
court in which the individual was convicted of committing the
listed offense. A petition filed under subsection (1) shall be
filed before October 1, 2007 or within 3 years after the individual
is discharged from the jurisdiction of the juvenile court or, if
the individual was assigned to youthful trainee status, within 3
years after he or she has successfully completed youthful trainee
status, whichever is later, and, except as otherwise provided in
this subsection, the court shall not consider a petition filed by
the individual after that date. A petition filed under subsection
(2) shall not be filed before the individual's seventeenth birthday
or after the individual's twentieth birthday. If the individual is
charged in this state or elsewhere with committing, attempting to
commit, or conspiring to commit a felony, other than the felony for
which he or she has filed the petition for registration as provided
under section 8d, or an offense that if committed by an adult would
be a felony, the court may hold the petition in abeyance until the
charges are finally disposed of. If the court holds the petition in
abeyance, the 3-year limitation periods described in this
subsection begin to run when the period of abeyance has ended. A
petition shall not be filed under this section if a previous
petition was filed under this section and was denied by the court
after a hearing. As used in this subsection, "felony" means a crime
that is specifically designated to be a felony or that is
punishable by imprisonment for more than 1 year.
(5) A petition filed under this section shall be made under
oath and shall contain all of the following:
(a) The name and address of the petitioner.
(b) A statement identifying the offense for which registration
as provided in section 8d is being requested.
(c) A statement of whether the individual was previously
convicted of a listed offense for which registration is required
under this act.
(d) A statement specifically stating that the individual is
not disqualified under subsection (14) from filing a petition under
this section.
(6) An individual who knowingly makes a false statement in a
petition filed under this section is guilty of perjury as
proscribed under section 423 of the Michigan penal code, 1931 PA
328, MCL 750.423.
(7) A copy of the petition shall be filed with the office of
the prosecuting attorney that prosecuted the case against the
individual at least 30 days before a hearing is held on the
petition. The prosecuting attorney may appear and participate in
all proceedings regarding the petition and may seek appellate
review of any decision on the petition.
(8) If the name of the victim of the offense is known by the
prosecuting attorney, the prosecuting attorney shall provide the
victim with written notice that a petition has been filed and shall
provide the victim with a copy of the petition. The notice shall be
sent by first-class mail to the victim's last known address. The
petition shall include a statement of the victim's rights under
subsection (11).
(9) If an individual petitions the court under subsection (1)
or (2) for an offense described in subsection (15)(a) or (b) and
the individual is not on the database maintained under section 8(2)
at the time the petition is filed, the court may order the
department not to place the individual on that database during the
period in which the court is considering whether to grant the
petition as follows:
(a) Except as provided in subdivision (b), for a period of 30
days after the date the order is issued or as provided by the
court, whichever occurs first.
(b) If jurisdiction is continued by the court past the
individual's seventeenth birthday, during the period in which
jurisdiction is continued. The court shall notify the department of
the order as required under section 8d.
(10) If an individual properly files a petition with the court
under this section, the court shall conduct a hearing on the
petition as provided in this section.
(11) The victim has the right to attend all proceedings under
this section and to make a written or oral statement to the court
before any decision regarding the petition is made. A victim shall
not be required to appear at any proceeding under this section
against his or her will.
(12) The court shall consider all of the following in
determining whether to allow the individual to register under this
act as provided in section 8d:
(a) The individual's age and level of maturity at the time of
the offense.
(b) The victim's age and level of maturity at the time of the
offense.
(c) The nature of the offense.
(d) The severity of the offense.
(e) The individual's prior juvenile or criminal history.
(f) The individual's likelihood to commit further listed
offenses.
(g) Any impact statement submitted by the victim under the
William Van Regenmorter crime victim's rights act, 1985 PA 87, MCL
780.751 to 780.834, or under this section.
(h) Any other information considered relevant by the court.
(13) If the court determines that the individual meets the
criteria for registration under section 8d, the court may order the
individual to register under this act as provided in that section.
(14) The court shall not grant a petition filed under this
section if any of the following apply:
(a) The individual was previously convicted of a listed
offense for which registration is required under this act.
(b) The individual fails to carry the burden of proving by
clear and convincing evidence that he or she is not likely to
commit further listed offenses.
(c) The court determines that the offense involved any of the
following:
(i) A factor set forth in section 520b(1)(b) to (h) of the
Michigan penal code, 1931 PA 328, MCL 750.520b.
(ii) A factor set forth in section 520c(1)(b) to (l) of the
Michigan penal code, 1931 PA 328, MCL 750.520c.
(iii) A factor set forth in section 520d(1)(b) to (e) of the
Michigan penal code, 1931 PA 328, MCL 750.520d.
(iv) A factor set forth in section 520e(1)(b) to (f) of the
Michigan penal code, 1931 PA 328, MCL 750.520e.
(d) The individual is charged in this state or elsewhere with
committing, attempting to commit, or conspiring to commit a felony,
other than the felony for which he or she has filed the petition
for registration as provided under section 8d, or an offense that
if committed by an adult would be a felony. This subsection does
not prohibit the court from holding the petition in abeyance under
subsection (4). As used in this subdivision, "felony" means a crime
specifically designated to be a felony or that is punishable by
imprisonment for more than 1 year.
(e) The individual was sentenced for the offense as an adult.
This subdivision does not apply to an individual described in
subsection (15)(c) who successfully completed his or her
probationary period and was discharged from youthful trainee
status.
(15) The right to petition under this section applies to all
of the following individuals:
(a) An individual who is convicted as a juvenile under section
520b, 520c, or 520d of the Michigan penal code, 1931 PA 328, MCL
750.520b, 750.520c, and 750.520d, of committing, attempting to
commit, or conspiring to commit a violation solely described in
section 520b(1)(a), 520c(1)(a), or 520d(1)(a) of the Michigan penal
code, 1931 PA 328, MCL 750.520b, 750.520c, and 750.520d, if either
of the following applies:
(i) The individual was under 13 years of age when he or she
committed the offense and is not more than 5 years older than the
victim.
(ii) The individual was 13 years of age or older but less than
17 years of age when he or she committed the offense and is not
more than 3 years older than the victim.
(b) An individual who was charged under section 520b, 520c, or
520d of the Michigan penal code, 1931 PA 328, MCL 750.520b,
750.520c, and 750.520d, with committing, attempting to commit, or
conspiring to commit a violation solely described in section
520b(1)(a), 520c(1)(a), or 520d(1)(a) of the Michigan penal code,
1931 PA 328, MCL 750.520b, 750.520c, and 750.520d, and is convicted
as a juvenile of violating, attempting to violate, or conspiring to
violate section 520e or 520g of the Michigan penal code, 1931 PA
328, MCL 750.520e and 750.520g, if either of the following applies:
(i) The individual was under 13 years of age when he or she
committed the offense and is not more than 5 years older than the
victim.
(ii) The individual was 13 years of age or older but less than
17 years of age when he or she committed the offense and is not
more than 3 years older than the victim.
(c) An individual who has successfully completed his or her
probationary period under sections 11 to 15 of chapter II of the
code of criminal procedure, 1927 PA 175, MCL 762.11 to 762.15, for
committing a listed offense, and has been discharged from youthful
trainee status.
(d) An individual who was convicted of a listed offense for
which a term of not more than 2 years' imprisonment may be imposed
and who has been registered under this act for not less than 10
years.
Sec. 8d. (1) An individual who petitions the court under
section 8c to register as provided in this section shall register
under this act as follows:
(a)
For a violation described in section 8c(15)(a), or (b), or
(d), the individual shall register under this act until the
petition is granted but is not subject to the requirements of
section 8(2).
(b) For a violation described in section 8c(15)(c) and for
which the petition is granted, the individual shall register under
this act for a period of 10 years after the date he or she
initially registered or, if the individual was in a state
correctional facility, for 10 years after he or she is released
from that facility, whichever is greater, and is subject to the
requirements of section 8(2) during that registration period.
(2) If the court under section 8c orders an individual to
register under this section pending the court's determination of
the petition, the court shall promptly provide a copy of that order
to the department and to the individual. If the department is
provided with an order under this subsection for an individual
described in section 8c(15)(a) or (b), the department shall not
enter the individual's registration into the database maintained
under section 8(2) until ordered by the court to do so or until
expiration of the order, whichever occurs first.
(3) If the court grants a petition filed under section 8c, the
court shall promptly provide a copy of that order to the department
and to the individual. If the department is provided with an order
under this subsection for a violation described in section
8c(15)(a), or
(b), or (d), the department shall not enter the
individual's registration into the database maintained under
section 8(2) or, if the person is already registered, shall
promptly remove that registration from the database maintained
under section 8(2). The department shall promptly remove an
individual's registration from the database maintained under
section 8(1) upon expiration of the applicable registration period
described in subsection (1) or (2) as provided in those
subsections.