30th JUDICIAL CIRCUIT

LANSING, MICHIGAN

THE STATE OF MICHIGAN V.                                      

DEFENDANT’S MOTION TO DISMISS

File No: 10         

            Now Comes the Defendant,            ,  by and through his counsel of record, and hereby moves this Court to dismiss the charge without prejudice and immediately release the defendant form confinement. The Defendant brings this motion because the law requiring a sex offender to register his address under the Sex Offender Registry does not apply to homeless people, and the Defendant is a homeless man with no definite address.

Respectfully submitted on November 30, 2010.

John Toivonen

Attorney at Law

MEMORANDUM

            The charge against               for failing to register his address under the Sex Offender Registration Act (SORA) should be dismissed because in the State of Michigan sex offenders who are homeless are not required to register an address, and when Mr.            was charged with the offense of failure to register he did not have an address. The case which holds that an offender with a domicile is exempt from address registration is People v. Dowdy, 287 Mich App 278 (2010). This holding was reaffirmed in the unpublished Michigan Court of Appeals case, People v. Farquharson, Mich No. 289071, July 22, 2010.

FACTS

            Mr.            has been placed on the Sex Offender Registry for a conviction on September 11, 1998 of the offense of Criminal Sexual Conduct 2nd Degree, 750.520C1A. He signed the Explanation of Duties To Register As A Sex Offender which gave him notice of his duty to register his address with law enforcement.

            The criminal charge against Mr.             states that on May 16, 2010 the defendant violated SORA by failing to verify the address of his residence quarterly, contrary to MCL 28.729(1)(a). At the time of the criminal charge Mr.            did not have an address which he could register because he was homeless.

ARGUMENT

THE CHARGE AGAINST THE DEFENDANT SHOULD BE DISMISSED BECAUSE MICHIGAN CASE LAW HAS CLEARLY ESTABLISHED THAT A SEX OFFENDER WHO IS HOMELESS DOES NOT HAVE THE LEGAL OBLIGATION TO REGISTER HIS ADDRESS

            The law is clear that a person who is placed on the Sex Offender Registry is required to register his address with law enforcement.

            MCL 28.725(1) states:

An individual required to be registered under this act shall notify the local law enforcement agency or sheriff’s department having jurisdiction where his or her new residence or domicile is located or the department post of the individual’s new residence or domicile within 10 days after the individual changes or vacates his or her residence, domicile, or place of work or education, including any change required to be reported under section 4a.

But in the instant case the defendant does not have a residence which he can register with law enforcement because at the time of the offense he was homeless.

MCL 28.722 (g) defines the term “residence” as follows:

“Residence,” as used in this act, for registration and voting purposes means that place at which a person habitually sleeps, keeps his or her personal effects, and has a regular place of lodging. If a person has more than 1 residence, or if a wife has a residence separate from that of the husband, that place at which the person residences the greater part of time shall be his or her official residence for the purposes of this act.

            Therefore, SORA requires individuals who have been convicted of specific, listed offense to register with local law enforcement when those individuals have either a domicile or residence. A “domicile” is a “a person’s true, fixed, principal, and permanent home, to which that person intends to return and remain even though currently residing elsewhere.” Black’s Law Dictionary (8th ed).

            In this case the defendant did not have a domicile at the time he was charged with failure to register an address. It is not disputed that the defendant is homeless.

            The Michigan Court of Appeals addressed the situation of sex offender registration in People v. Dowdy, 287 Mich App 278 (2010). In this case the defendant was charged with failure to register his address under SORA. The court held that because the defendant was homeless he had no obligation to register an address.

            The court wrote, “In sum, in SORA, the Legislature provided for maintaining information on the location of convicted sexual offenders in order to provide for the public safety. MCL 28.721a. But, in so doing, the Legislature chose to focus those reporting requirements on persons who have a domicile or residence, as defined in the act. The Legislature is free, indeed, empowered, to make this choice, as it is to include a provision addressing reporting requirements for the homes. As Justice HATHAWAY indicated in her dissenting opinion in Dowdy, 484 Mich supra at 863, the purpose of SORA is wise, and the Legislature is urged to consider changes to that a homeless person who does not have a domicile or residence may readily comply with its requirements. Any such change, however, is solely within the province of the legislative branch. Gardner, 482 Mich at 66.” Dowdy p 282

            The Dowdy Court clearly established that a sex offender who does not have a regular residence is not required to register an address. 

            In People v. Farquharson, Mich NO. 289071, July 22, 2010 the Michigan Court of Appeals reversed a conviction for failure to report his address under SORA due to the fact that the defendant did not have a residence. The defendant was a homeless person.

            The court wrote, “there is no suggestion here that the defendant was other than homeless at the time he was charged with failing to report under the SORA. Accordingly, defendant was not subject to the SORA, and his conviction must be reversed.”

CONCLUSION

            The Sex Offender Registration Act requires a convicted sex offender to register his address on a quarterly basis with local law enforcement. But the requirement that an offender register his address applies only to an offender who has an actual residence or domicile. The Michigan Court of Appeals has held that a homeless person has no legal obligation to register an address under the Sex Offender Registration Act. In the instant case there is no dispute that Mr.            was homeless at the time that he was charged with failure to register his address. Therefore, the court should dismiss the charge without prejudice and immediately release the defendant from confinement.

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