Frank Reese v. Trey Oliver, Warden of Mobile County Metro Jail

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REL: 12/17/2010 Notice: T h i s o p i n i o n i s s u b j e c t t o formal r e v i s i o n b e f o r e p u b l i c a t i o n i n t h e advance s h e e t s o f Southern R e p o r t e r . R e a d e r s a r e r e q u e s t e d t o n o t i f y t h e R e p o r t e r o f D e c i s i o n s , Alabama A p p e l l a t e C o u r t s , 300 D e x t e r A v e n u e , M o n t g o m e r y , A l a b a m a 3 6 1 0 4 - 3 7 4 1 ((334) 2 2 9 - 0 6 4 9 ) , o f a n y t y p o g r a p h i c a l o r o t h e r e r r o r s , i n o r d e r t h a t c o r r e c t i o n s may b e made b e f o r e t h e o p i n i o n i s p r i n t e d i n Southern R e p o r t e r . ALABAMA COURT OF CRIMINAL APPEALS OCTOBER TERM, 2010-2011 CR-09-1292 F r a n k Reese v. T r e y O l i v e r , Warden o f M o b i l e Appeal KELLUM, On from M o b i l e C i r c u i t (CV-09-1859) Jail Court Judge. The court's County M e t r o appellant, Frank Reese, d e n i a l of h i sp e t i t i o n o r about offender, was appeals the circuit f o ra w r i t o f habeas September 17, 2008, sentenced from to 10 corpus. Reese, a c o n v i c t e d sex years' imprisonment; that CR-09-1859 s e n t e n c e was by split 5 years' the time, the seq., was offender Reese probation. subsequently f o r m e r § 15-2 0 - 2 2 ( a ) ( 1 ) , C o d e 1975 to -- provide Act which "the to time based was on ("the at failure to his CNA"), an address § adult at followed homeless A l a . C o d e 1975 required actual served R e e s e , who arrested Community N o t i f i c a t i o n Ala. will sentence supervised comply w i t h of to -- a part 15-20-20 criminal which he or release Ala. from Code ("DOC") a t custody. 1975, requirements of 1 least Pursuant "[a]ny" that 45 days to before former § failure Code the section to sex she r e s i d e or l i v e upon r e l e a s e " t o the Alabama Department Corrections et of offender's 15-20-22(a)(1), comply constituted with a the Class C felony. On O c t o b e r 27, 2 0 0 9 , R e e s e , an Mobile County Metro J a i l , for inmate i n c a r c e r a t e d p e t i t i o n e d the a w r i t of habeas corpus, r e q u e s t i n g declare 22(a)(1), unconstitutional Ala. Code 1975, that that Mobile C i r c u i t that portion required of the circuit former him to § at the Court court 15-20- provide an T h a t s e c t i o n was a m e n d e d e f f e c t i v e May 21, 2009. The a m e n d m e n t p r o v i d e s , a m o n g o t h e r t h i n g s , t h a t 180 d a y s b e f o r e release from i n c a r c e r a t i o n the offender must d e c l a r e "the a c t u a l p h y s i c a l a d d r e s s " a t w h i c h he o r s h e w i l l r e s i d e o r l i v e upon r e l e a s e . 1 2 CR-09-1859 actual physical incarceration, address to t o DOC dismiss the order h i s immediate release alleged that he Reese was alleged that as from j a i l . and constituted because i t cruel penalized homeless p e r s o n ; (3) him the s t a t u t e was his statute him violated it his caused other to be and equal protection were not as basis, was (2) as an him indigent applied indigent, rights act when the statute the law because his would the (4) under for to i t s face t o p e r f o r m an comply; incarcerated who indigence not be when punished statute. November Metro J a i l , habeas him offenders under the On r i g h t to to v a g u e on to Reese v i o l a t e d due-process it for and that punishment for his failure impossible On status b e c a u s e i t p u n i s h e d him was him, like himself; unusual for against 15-20-22(a)(1) offenders and subject In his petition, § (1) t h e t o be homeless. former a p p l i e d t o homeless sex statute otherwise indictment indigent u n c o n s t i t u t i o n a l because and or 25, 2009, Oliver, as warden f i l e d a response to Reese's p e t i t i o n corpus. On Reese's p e t i t i o n . May This 13, 2010, appeal the followed. 3 circuit of the Mobile for a writ court of denied CR-09-1859 On appeal, petition Reese for a writ reasserts the claims of habeas corpus, he again made in his challenging the c o n s t i t u t i o n a l i t y o f f o r m e r § 1 5 - 2 0 - 2 2 ( a ) ( 1 ) , A l a . Code 1975. This Court [Ms. CR-08-1728, November App. 2010). In recently Adams, addressed the issue 5, 2 0 1 0 ] defendant Correctional Facility after this a n d was i n State So. 3d was date, Adams was a d d r e s s w h e r e he w o u l d unable live i n d i g e n t a n d t h a t he c o u l d release from court On DOC after Kilby i n 2008, h i s scheduled with an actual h i s release. The i n d i c a t e d t h a t A d a m s was f i n d no p l a c e incarceration. at f o r release to provide or reside evidence presented to the t r i a l Crim. incarcerated scheduled Adams, (Ala. c o m p l e t i n g h i s s e n t e n c e . However, b e f o r e release v. to live h i s scheduled following his release date, Adams was a r r e s t e d a n d was s u b s e q u e n t l y i n d i c t e d f o r v i o l a t i n g § 15-20-22(a)(1), dismiss the 22(a)(1) that was indictment on 1975. the unconstitutional. Defense basis live counsel moved former § 15-20- counsel argued that Specifically, that p o r t i o n of § 15-20-22(a)(1) to provide or A l a . Code r e q u i r i n g the defendant " t h e a c t u a l a d d r e s s a t w h i c h he o r s h e w i l l upon r e l e a s e " was unconstitutional 4 to because: reside CR-09-1859 " ( 1 ) i t d i d n o t p r o v i d e a n y n o t i c e a s t o how a n a d u l t c r i m i n a l s e x o f f e n d e r who i s h o m e l e s s could c o m p l y w i t h t h e s t a t u t e a n d , t h u s , was v a g u e o n i t s face and as a p p l i e d to the defendant; (2) i t c o n s t i t u t e d c r u e l and u n u s u a l punishment as a p p l i e d to t h e defendant because i t punished him f o rh i s s t a t u s as a homeless p e r s o n ; (3) i t v i o l a t e d t h e defendant's rights t o due process because i t r e q u i r e d t h e d e f e n d a n t t o p e r f o r m a n a c t t h a t h e was i n c a p a b l e o f p e r f o r m i n g ; a n d (4) i t v i o l a t e d t h e defendant's right to equal protection of the law b e c a u s e i t i n c a r c e r a t e d h i m f o r h i s i n d i g e n c e when o t h e r o f f e n d e r s who w e r e n o t i n d i g e n t w o u l d n o t b e punished under the s t a t u t e . " Adams, So. 3d at a s s e r t e d by defense indictment The . Agreeing counsel, the c i r c u i t with the arguments court dismissed the against the defendant. State appealed, arguing that § 15-20-22(a)(1) unconstitutional. registration This Court requirement disagreed and former in 15-20-22(a)(1) § held was n o t that the was u n c o n s t i t u t i o n a l a s a p p l i e d t o t h e d e f e n d a n t i n A d a m s , who was both indigent and homeless, because i tviolated both equal- p r o t e c t i o n p r i n c i p l e s and c o n s t i t u t i o n a l p r o h i b i t i o n s a g a i n s t cruel and unusual punishment. In to the instant comply 22(a)(1), with Adams, So. 3d a t c a s e , R e e s e was a r r e s t e d the A l a . Code registration 1975. Reese after requirement filed a . he failed in § 15-20- habeas corpus p e t i t i o n i n w h i c h h e a l l e g e d t h a t h e was i n d i g e n t a n d 5 homeless CR-09-1859 and therefore Code 1975. unable Like the defendant constitutionality § t o comply with of the registration with the s t a t u t e because this Court's holding Reese i n h i s p e t i t i o n reversed, court that requirement h e was u n a b l e h e was i n d i g e n t i n Adams i n former comply and homeless. Given and t h e a l l e g a t i o n s r a i s e d by f o r w r i t o f habeas corpus, the judgment d i s m i s s i n g t h e habeas corpus p e t i t i o n i s consistent with R E V E R S E D AND the to and t h i s cause i s remanded t o t h a t c o u r t proceedings Wise, 15-20-22(a)(1), A l a . i n Adams, R e e s e c h a l l e n g e d 1 5 - 2 0 - 2 2 ( a ) ( 1 ) on t h e g r o u n d of the c i r c u i t § this for further opinion. REMANDED. P . J . , and Welch, Windom, a n d M a i n , 6 J . J . , concur.

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