Judges reverse sex offender's exemption. Those found guilty must stay on registry even if judgment is withheld.

November 2, 2000

People found guilty of crimes requiring registration as a sex offender must stay on the registry at least 10 years, even if a withheld judgment ultimately leads to the charge being dismissed, the Idaho Court of Appeals said.

Judge Karen Lansing wrote for the three-judge appellate panel, in a unanimous opinion issued Wednesday, that "a dismissal of a criminal charge after judgment has been withheld is an exercise of leniency by the court, notwithstanding the defendant's actual guilt of the charged offense."

The ruling reversed now-retired 4th District Judge Robert Newhouse's order exempting James Douglas Perkins from the sex offender reporting requirement and removing his record from the registry.

Perkins was 19 in 1992 when he was charged with the statutory rape of a 13-year-old girl. After pleading guilty he received a withheld judgment and was placed on probation for five years. But prosecutors moved to have the charge against him dismissed in 1994 when Perkins agreed to enlist in the Army.

After returning from an overseas assignment in 1998, Perkins' commanding officer informed him he would be discharged from the Army if he was required to register as a sex offender. Perkins asked Newhouse for an order exempting him from the reporting requirement and expunging his record from the sex offender registry.

The judge agreed, but the state argued on appeal that Newhouse lacked the authority for such an order since the law required Perkins to keep reporting for at least 10 years from the date he was placed on probation.

The Court of Appeals agreed, citing the definition of "conviction" used in the 1993 Sex Offender Registration Act.

"When the Registration Act was enacted, the Legislature can be presumed to have known that the charge against a defendant could be dismissed ... after a period of withheld judgment if the defendant successfully completed probation," Lansing wrote.

"Yet, the Legislature created no exemption in the Registration Act for those who obtained such a dismissal. To the contrary, the Legislature expressly defined 'conviction' for purposes of the Registration Act to include anyone who has been adjudicated guilty of an enumerated sex offense 'notwithstanding the form of the judgment or withheld judgment."

In specially concurring with that conclusion, Judge Alan Schwartzman added that Perkins' guilty plea was never set aside but only technically dismissed on the condition that he complete an Army tour of duty and comply with other terms.

"A true expungement would leave no plea of guilty or finding of guilt upon which the Sexual Offender Registration Act could hang its jurisdictional hat," Schwartzman wrote. "Such is not the case here!"

Still, the executive director of the American Civil Liberties Union of Idaho said such laws too often unfairly punish reformed offenders.

"It reflects the whole problem of society not looking at the individual circumstances of cases but enforcing an arbitrary rule that hurts individuals more than helps them," Jack Van Valkenburgh said. "I certainly blame the Legislature for passing a bad law that is overbroad. It's too easy for politicians with a broad brush to condemn an entire population to a lasting stigma when some of those people could pull their lives together."


Source: The Idaho Statesman. By Mark Warbis, The Associated Press.