2020 Georgia Code
Title 42 - Penal Institutions
Chapter 1 - General Provisions
Article 2 - Sexual Offender Registration Review Board
§ 42-1-19. Petition for Release From Registration Requirements

Universal Citation: GA Code § 42-1-19 (2020)
  1. An individual required to register pursuant to Code Section 42-1-12 may petition a superior court for release from registration requirements and from any residency or employment restrictions of this article if the individual:
    1. Has completed all prison, parole, supervised release, and probation for the offense which required registration pursuant to Code Section 42-1-12; and
      1. Is confined to a hospice facility, skilled nursing home, residential care facility for the elderly, or nursing home;
      2. Is totally and permanently disabled as such term is defined in Code Section 49-4-80; or
      3. Is otherwise seriously physically incapacitated due to illness or injury;
    2. Was sentenced for a crime that became punishable as a misdemeanor on or after July 1, 2006, and meets the criteria set forth in subparagraphs (c)(1)(A) through (c)(1)(F) of Code Section 17-10-6.2;
    3. Is required to register solely because he or she was convicted of kidnapping or false imprisonment involving a minor and such offense did not involve a sexual offense against such minor or an attempt to commit a sexual offense against such minor. For purposes of this paragraph, the term "sexual offense" means any offense listed in division (a)(10)(B)(i) or (a)(10)(B)(iv) through (a)(10)(B)(xix) of Code Section 42-1-12; or
    4. Has completed all prison, parole, supervised release, and probation for the offense which required registration pursuant to Code Section 42-1-12 and meets the criteria set forth in subparagraphs (c)(1)(A) through (c)(1)(F) of Code Section 17-10-6.2.
    1. A petition for release pursuant to this Code section shall be filed in the superior court of the jurisdiction in which the individual was convicted; provided, however, that if the individual was not convicted in this state, such petition shall be filed in the superior court of the county where the individual resides.
    2. Such petition shall be served on the district attorney of the jurisdiction where the petition is filed, the sheriff of the county where the petition is filed, and the sheriff of the county where the individual resides. Service on the district attorney and sheriff may be had by mailing a copy of the petition with a proper certificate of service.
    3. If a petition for release is denied, another petition for release shall not be filed within a period of two years from the date of the final order on a previous petition.
    1. An individual who meets the requirements of paragraph (1), (2), or (3) of subsection (a) of this Code section shall be considered for release from registration requirements and from residency or employment restrictions.
    2. An individual who meets the requirements of paragraph (4) of subsection (a) of this Code section may be considered for release from registration requirements and from residency or employment restrictions only if:
      1. Ten years have elapsed since the individual completed all prison, parole, supervised release, and probation for the offense which required registration pursuant to Code Section 42-1-12; or
      2. The individual has been classified by the board as a Level I risk assessment classification, provided that if the board has not done a risk assessment classification for such individual, the court shall order such classification to be completed prior to considering the petition for release.
  2. In considering a petition pursuant to this Code section, the court may consider:
    1. Any evidence introduced by the petitioner;
    2. Any evidence introduced by the district attorney or sheriff; and
    3. Any other relevant evidence.
  3. The court shall hold a hearing on the petition if requested by the petitioner.
  4. The court may issue an order releasing the individual from registration requirements or residency or employment restrictions, in whole or part, if the court finds by a preponderance of the evidence that the individual does not pose a substantial risk of perpetrating any future dangerous sexual offense. The court may release an individual from such requirements or restrictions for a specific period of time. The court shall send a copy of any order releasing an individual from any requirements or restrictions to the sheriff and the district attorney of the jurisdiction where the petition is filed, to the sheriff of the county where the individual resides, to the Department of Corrections, to the Department of Community Supervision, and to the Georgia Bureau of Investigation.

(Code 1981, §42-1-19, enacted by Ga. L. 2010, p. 168, § 15/HB 571; Ga. L. 2015, p. 422, § 5-67/HB 310.)

The 2015 amendment, effective July 1, 2015, inserted "to the Department of Community Supervision," in the last sentence of subsection (f). See Editor's notes for applicability.

Editor's notes.

- Ga. L. 2015, p. 422, § 6-1/HB 310, not codified by the General Assembly, provides that: "This Act shall become effective July 1, 2015, and shall apply to sentences entered on or after such date."

Law reviews.

- For article on the 2015 amendment of this Code section, see 32 Ga. St. U. L. Rev. 231 (2015).

JUDICIAL DECISIONS

Release from registration requirements proper.

- Trial court did not abuse the court's discretion in releasing the defendant from the sex offender registration requirements because under O.C.G.A. § 17-10-6.2(c)(1)(D), there was evidence that the underlying child molestation offense consisted of the defendant touching the genitals of the child victim with the defendant's hands; thus, the sexual offense did not rise to the level of intentional physical harm so as to preclude release from the registration requirements. State v. Randle, 331 Ga. App. 1, 769 S.E.2d 724 (2015).

Phrase "intentional physical harm," as it was used in O.C.G.A. § 17-10-6.2(c)(1)(D), providing conditions for release from the sex offender registry, meant intentional physical contact that caused actual physical damage, injury, or hurt to the victim; a sex offender registrant was entitled to release from registration because his unwanted touching of a ten-year-old boy's penis did not constitute such physical damage, injury, or hurt. State v. Randle, 298 Ga. 375, 781 S.E.2d 781 (2016).

Denial of petition for release from requirement to register.

- Trial court erred when the court denied the defendant's petition for release from the requirement to register as a sex offender and failed to determine whether the defendant ever touched a woman who testified at the criminal trial without the woman's consent, thereby committing a sexual offense; thus, since neither the verdict nor the evidentiary ruling in the defendant's case conclusively established that the encounter was a "relevant similar transaction," further proceedings were necessary. Yelverton v. State of Georgia, 300 Ga. 312, 794 S.E.2d 613 (2016).

Trial court was indeed authorized, after denying the petition to be released from the sex offender registration requirement on one specific ground and being reversed on appeal, to deny the petition a second time for a wholly different reason. Royster v. State of Ga., 346 Ga. App. 333, 814 S.E.2d 455 (2018).

Trial court did not err in denying the defendant's request to be released from the sex offender registration requirements as the record showed that the defendant was convicted of an intentional act of aggravated child molestation which resulted in physical injury to the victim when the defendant placed the defendant's finger inside the rectum of a child under the age of 14 years, with the intent to satisfy the sexual desires of the accused, and which resulted in physical injury to the child. Strickland v. State, 347 Ga. App. 216, 818 S.E.2d 675 (2018).

Second petition for release from registration improperly dismissed.

- Because O.C.G.A. § 42-1-19 barred a person on the sex offender registry from filing a second petition for release from registration requirements within two years from a final order on a previous petition, if the first petition for relief was denied, but the defendant's first petition was not denied as the petition was treated as either a voluntary dismissal or, alternatively, a dismissal for failure to prosecute, neither of which operated as an adjudication on the merits of the first petition, the trial court erred by dismissing the defendant's second petition for release from sex offender registration requirements as that petition was not filed within two years of the previous petition. Hawkins v. State, 330 Ga. App. 547, 768 S.E.2d 523 (2015).

RESEARCH REFERENCES

ALR.

- Validity, construction, and application of state sex offender registration statutes concerning level of classification - Claims for downward departure, 66 A.L.R.6th 1.

Validity, construction, and application of state sex offender registration statutes concerning level of classification - claims for downward departure, 66 A.L.R.6th 1.

CHAPTER 2 BOARD AND DEPARTMENT OF CORRECTIONS

Sec.

  • 42-2-1. Creation.
  • 42-2-2. Board members, officers, records, and compensation.
  • 42-2-3. Board meetings.
  • 42-2-4. Department created.
  • 42-2-5. Administrative functions of department.
  • 42-2-5.1. Special school district for school age youth.
  • 42-2-5.2. Educational programs for adult offenders; awarding of Program and Treatment Completion Certificate.
  • 42-2-6. Office of commissioner created; general duties; appointment; compensation.
  • 42-2-7. Duties of commissioner relating to department retirements.
  • 42-2-8. Additional duties of commissioner.
  • 42-2-9. Selection of department personnel; establishment and maintenance of roster of employees.
  • 42-2-10. Office of board, commissioner, and staff.
  • 42-2-11. Powers and duties of board; adoption of rules and regulations.
  • 42-2-12. Reasonableness of rules and regulations.
  • 42-2-13. Grants to municipal corporations and counties for local jails and correctional institutions.
  • 42-2-14. Power of Governor to declare state of emergency with regard to jail and prison overcrowding.
  • 42-2-15. Employee benefit fund.
  • 42-2-16. Retaining department issued weapons.
Editor's notes.

- Ga. L. 1985, p. 283, § 1 changed the name of the Department of Offender Rehabilitation, the Board of Offender Rehabilitation, and the commissioner of offender rehabilitation to the Department of Corrections, the Board of Corrections, and the commissioner of corrections, respectively, and amended sections throughout the Code to conform to the change. Section 2 of that Act, not codified by the General Assembly, provided as follows: "For administrative convenience, equipment and supplies bearing the name Board of Offender Rehabilitation, Department of Offender Rehabilitation, or commissioner of offender rehabilitation may be used by the Board of Corrections, Department of Corrections, or commissioner of corrections as if such equipment or supplies bore the name Board of Corrections, Department of Corrections, or commissioner of corrections."

Law reviews.

- For comment, "Inherently Governmental: A Legal Argument for Ending Private Federal Prisons and Detention Centers," see 67 Emory L.J. 293 (2017).

RESEARCH REFERENCES

Am. Jur. 2d.

- 60 Am. Jur. 2d, Penal and Correctional Institutions, §§ 20, 21.

C.J.S.

- 72 C.J.S., Prisons and Rights of Prisoners, §§ 12-16.

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