State Of Louisiana VS Michael E. Fisher
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2011 KA 1263 STATE OF LOUISIANA q5 J VERSUS MICHAEL E FISHER DATE OF JUDGMENT SEP 2 12012 ON APPEAL FROM THE TWENTY SECOND JUDICIAL DISTRICT COURT NUMBER 455700 DIVISION E PARISH OF ST TAMMANY STATE OF LOUISIANA HONORABLE WILLIAM J BURRIS JUDGE Walter P Reed District Attorney Counsel for Appellee Covington Louisiana State of Louisiana Kathryn W Landry Attorney for the State Baton Rouge Louisiana Juan C Labadie Counsel for Defendant Appellant Gretna Louisiana Michael E Fisher Bertha M Hillman Thibodaux Louisiana BEFORE KUHN PETTIGREW MCDONALD JJ Disposition CONVICTION AFFIRMED INSTRUCTIONS SENTENCE VACATED REMANDED WITH KUHN J The defendant Michael E Fisher was charged by bill of information with one count of failure to register as a sex offender a violation of La R 15 and S 542 pled not guilty He moved to quash the bill of information Following a hearing the motion was denied Thereafter the State amended the charge to one count of attempted failure to register as a sex offender a violation of La R 14 and La S 27 S 542 R 15 and the defendant pled guilty pursuant to State v Crosby 338 So 2d 584 La 1976 reserving his right to seek review of the ruling denying the motion to quash The trial court sentenced him to two years at hard labor suspended and two years of probation subject to general and special conditions including a 00 500 fine The defendant now appeals contending that ex postfacto application of La R 15 et seq subjects him to double jeopardy For the following S 540 reasons we affirm the conviction vacate the sentence and remand for resentencing FACTS On August 12 1993 the defendant was convicted under docket number 92 21289 CFA Eighteenth Judicial Circuit Court Brevard County Florida of three counts of lewd and lascivious acts upon a child two counts of sexual activity with a child and one count of attempting to entice a child to commit a lewd and lascivious act Thereafter the defendant moved to Mississippi and was released from probation in 1998 Although the defendant moved to Louisiana in 2003 he did not register as a sex offender until May 25 2006 Thereafter he failed to maintain his registration 1 The defendant testified he was placed on probation for ten years but Mississippi exercised an option to close the case after five years There was no testimony concerning the date of the offense the bill of information charged that the offense occurred on July 27 2008 2 EX POST FACTO CLAUSE In his sole assignment of error the defendant concedes that the State correctly argued to the trial court that the Louisiana Supreme Court had determined that the requirements of La R 15 et seq can be applied retroactively without violating S 540 the prohibition against ex post facto laws See State ex rel Olivieri v State 00 0172 La 2 779 So 735 750 cert denied 533 U 936 121 S 2566 01 21 2d S Ct 150 L 730 2001 2d Ed Hutchinson v Louisiana 534 U 892 122 S 208 S Ct 151 L 148 2001 The defendant argues however that the Louisiana statutes 2d Ed governing sex offender registration are intended as a law enforcement tool and have become so punitive in nature when viewed against the backdrop of other states legislation as to make their retroactive application constitutionally prohibited He further contends that forcing him to register serves as multiple punishment because he has already completed his sentence and probation On appeal from the denial of a motion to quash a trial court legal findings s are subject to a de novo standard of review See State a Smith 99 0606 992094 99 2015 99 2019 La 7 766 So 501 504 00 6 2d In State v Mitchell 10 La App 4th Cir 9 49 So 958 959 0193 10 29 3d n 1 the defendant also conceded that State ex rel Olivieri was contrary to his position but argued that La R 15 and its progeny had been changed and S 542 amended so many times since its initial enactment that the decision was ripe for revisiting We agree with the court in Mitchell that Is an argument to this uch court is meritless Mitchell 49 So at 959 n 3d 1 We also reject the defendant claim that requiring him to register as a sex s offender after completion of his sentence and probation subjects him to multiple punishment The Louisiana Supreme Court has recently reaffirmed that the restrictions imposed by the Louisiana Sex Offender Registration Laws are civil not 3 criminal See State v Trosclair 11 2302 La 5 89 So 340 350 2 1 8 3d requiring the defendant to register does not punish him Thus Pursuant to the law in effect at the time of the commission of the sex offenses the defendant was required to register and give notice until ten years from the date of initial registration See La R 15 prior to amendment by 2007 La Acts No 460 2 Following S 544 A amendment by 2007 La Acts No 460 2 La R 15 provided that a S 544 1 B person convicted of a sexual offense against a victim who was a minor was required to register and give notice for twentyfive years after the date of initial registration in Louisiana The defendant did not register as a sex offender until May 25 2006 The period of time a sex offender is obligated to register may be extended during the time of his original registration period without violating the ex post facto clause See State v Smith 101140 La 1 84 So 487 498 Accordingly under 12 24 3d the current statutory law and decisions of the Louisiana Supreme Court the trial court did not err in denying the motion to quash This assignment of error is without merit REVIEW FOR ERROR Initially we note that our review for error is pursuant to La C art 920 P Cr which provides that the only matters to be considered on appeal are errors designated in the assignments of error and error that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence La C art 920 P Cr 2 The defendant pled guilty to attempted failure to register as a sex offender a violation of La R 14 and La R 15 A person who fails to register as a S 27 S 542 sex offender update registration annually or provide proof of residence address or community notification shall upon first conviction be fined not more than one thousand dollars and imprisoned with hard labor for not less than two years nor more than ten years without benefit of parole probation or suspension of sentence La S R 1 F 542 15 prior to amendment by 2007 La Acts No 460 2 Whoever attempts to commit any crime shall be fined or imprisoned or both in the same manner as for the offense attempted such fine or imprisonment shall not exceed one half of the largest fine or onehalf of the longest term of imprisonment prescribed for the offense so attempted or both La R 14 Thus the S 27 3 D sentencing range in this matter was a fine of not more than 500 and 00 imprisonment at hard labor for not more than five years without benefit of parole probation or suspension of sentence The trial court however improperly sentenced the defendant to two years at hard labor suspended and two years of probation subject to general and special conditions including a 500 fine 00 Accordingly we hereby vacate the sentence imposed by the trial court and remand this matter for resentencing in accordance with this decision See La Code Crim P arts 881 40 A 882 CONVICTION AFFIRMED SENTENCE REMANDED WITH INSTRUCTIONS 5 VACATED AND STATE OF LOUISIANA NUMBER 2011 KA 1263 VERSUS COURT OF APPEAL MICHAEL E FISHER FIRST CIRCUIT STATE OF LOUISIANA BEFORE KUHN PETTIGREW AND McDONALD PETTIGREW J CONCURS AND ASSIGNS REASONS I am of the opinion the Louisiana Supreme Court should revisit the issue as to whether applying La R 15 et seq retroactively violates the prohibition against S 540 expost facto laws At this time the Louisiana Supreme Court has spoken in its holdings of State ex rel Qlivieri v State 2000 0172 La 2 779 So 735 cert 01 21 2d denied 533 U 936 121 S 2566 150 L 730 2001 and State v Trosclair S Ct 2d Ed 2011 2302 La 5 89 So 340 12 8 3d constante I am compelled to concur p 14 La 745 So 991 1014 10 6 3d Under the civilian doctrine of jurisprudence See Hogg v Chevron USA Inc 2009 2632
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