Witten v. Mississippi
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Carey Witten was convicted in Sacramento County, California, of oral copulation and rape of a person “. . . unconscious of the nature of the act . . .” in violation of the California Penal Code. Witten was granted five years’ probation, and he received an order of dismissal after successful completion of his probation. Witten relocated to Mississippi and filed a petition for relief from the duty to register in Mississippi Code. At the hearing on the matter, Witten argued that his order of dismissal from California satisfied the requirements of Mississippi Code Section 45-33-47(4), such that Witten should have been relieved of the duty to register as a sex offender in Mississippi. The assistant district attorney agreed with Witten. The trial court also agreed and subsequently entered an order relieving Witten of the duty to register as a sex offender in Mississippi. R. Steven Coleman, on behalf of the Mississippi Department of Public Safety, Criminal Information Center, Sex Offenders Registry, filed a Mississippi Rule of Civil Procedure 60(b) motion to set aside and render as void the trial court’s order relieving Witten of the duty to register, based on Mississippi and California statutes that were not presented to the trial court at the hearing and that had bearing on whether or not Witten was required to register as a sex offender. The trial court ultimately granted the motion to set aside and render as void the earlier judgment. Witten appealed the Supreme Court, arguing the trial court erred as a matter of Mississippi law in its assessment of Mississippi Code Sections 45-33-23 and 45-33-47(4). The Court affirmed the trial court’s ruling, finding that Witten’s conviction had not been set aside or dismissed in accordance with Mississippi Code Section 45-33-47(4) and that Witten was required to continue registration as a sex offender in the State of Mississippi.
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