30th JUDICIAL CIRCUIT
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.
Attorney at Law
The charge against
The criminal charge against Mr.
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.”
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.