Petitioning Opportunities for Discontinuation of Registration

 

General Comments concerning ALL petitioning opportunities

  • Individuals who qualify can petition for removal from registration responsibilities under MCL 28.728c of the Michigan Sex Offender Registration Act.
  • It is highly recommended that a petitioner hire an attorney who has a very good knowledge of the law, as only ONE opportunity to petition for removal is allowed! Petitioners need to make sure they are afforded the best possible chance for removal!
  • Individuals convicted or adjudicated in another state or country can petition if they meet the petitioning requirements.
  • Petitions must be filed in the original convicting court unless the individual’s conviction is from out of state/country and then the petition is filed in the Circuit Court of the county in which the individual resides.
  • Risk assessments are not required when petitioning.  However, risk assessments could be very helpful in proving low risk to re-offend… and could also help prove consent.
  • If name and address of the victim is known the prosecuting attorney will provide the victim with written notice that a petition has been filed and provide them with a copy of the petition
  • The court shall conduct a hearing on each petition.
  • The victim has the right to attend all proceedings and to make a written or oral statement to the court before a decision is made by the court. Victims are not required to appear.
  • Prosecuting attorney may seek appellate review of any decision on the petition
  • If a petition is approved, be sure that a copy is sent to the Michigan State Police Sex Offender Registry Unit so that removal can take place right away!
  • It would be advisable to always have a copy of a successful petitioning order with you (possibly in a car glove box) in case it is ever needed.
  • The law does not contain a procedure which would allow a registrant to challenge their Tier level placement. If a registrant feels their Tier level has been inaccurately assigned, they need to hire an attorney.
  • If you still have a conviction on your record, even if you are removed from Michigan requirements to register, and you are considering a move to another state, it would be advisable to check that other state’s laws to make sure you would not have a requirement to register there.
  • If you are removed from the Michigan registry it is important to check secondary websites to make sure you are not being listed someplace else, where their records are not kept up to date. A good way to check for other possible sites is to do a search for your full name, as it appeared on Michigan’s registry.
  • Petition to Discontinue Sex Offender Registration and Order. These official court forms can be used if you qualify and want to ask the court to grant you permission to discontinue the requirement to register. Note: We highly recommend hiring an attorney!  
  • Petition to Discontinue Registration  Official court order form, including what should have been proven during a petition.

 

28.728c Petition to discontinue registration; jurisdiction; limitations; oath; contents; false statement; filing copy with office of prosecuting attorney; notice; hearing; rights of victim; factors in court determination; granting of petition.

{THREE petitioning opportunities}

(1) An individual classified as a tier I offender who meets the requirements of subsection (12) may petition the court under that subsection for an order allowing him or her to discontinue registration under this act.

(2) An individual classified as a tier III offender who meets the requirements of subsection (13) {juvenile adjudicated registrants ONLY} may petition the court under that subsection for an order allowing him or her to discontinue registration under this act.

(3) An individual classified as a tier I, tier II, or tier III offender who meets the requirements of subsection (14) {consent} or (15) {juvenile adjudicated when they were under the age of 14 or convicted/adjudicated for an offense which no longer requires registration} may petition the court under that subsection for an order allowing him or her to discontinue registration under this act.

 

{The law allows for only ONE opportunity to petition}

(4) This section is the sole means by which an individual may obtain judicial review of his or her registration requirements under this act. This subsection does not prohibit an appeal of the conviction or sentence as otherwise provided by law or court rule. A petition filed under this section shall be filed in the court in which the individual was convicted of committing the listed offense. However, if the conviction occurred in another state or country and the individual is a resident of this state, the individual may file a petition in the circuit court in the county of his or her residence for an order allowing him or her to discontinue registration under this act only. A petition shall not be filed under this section if a previous petition was filed under this section and was denied by the court after a hearing.

 

{ALL petitions must contain the following}

(5) A petition filed under this section shall be made under oath and shall contain ALL of the following:

(a) The name and address of the petitioner.

(b) A statement identifying the offense for which discontinuation from registration is being requested.

(c) A statement of whether the individual was previously convicted of a listed offense for which registration is required under this act.

(6) An individual who knowingly makes a false statement in a petition filed under this section is guilty of perjury as proscribed under section 423 of the Michigan penal code, 1931 PA 328, MCL 750.423.

(7) A copy of the petition shall be filed with the office of the prosecuting attorney that prosecuted the case against the individual or, for a conviction that occurred in another state or country, the prosecuting attorney for the county of his or her residence, at least 30 days before a hearing is held on the petition. The prosecuting attorney may appear and participate in all proceedings regarding the petition and may seek appellate review of any decision on the petition.

(8) If the name of the victim of the offense is known by the prosecuting attorney, the prosecuting attorney shall provide the victim with written notice that a petition has been filed and shall provide the victim with a copy of the petition. The notice shall be sent by first-class mail to the victim’s last known address. The petition shall include a statement of the victim’s rights under subsection (10).

(9) If an individual properly files a petition with the court under this section, the court shall conduct a hearing on the petition as provided in this section.

(10) The victim has the right to attend all proceedings under this section and to make a written or oral statement to the court before any decision regarding the petition is made. A victim shall not be required to appear at any proceeding under this section against his or her will.

 

{Other court considerations for petitions #12 and #13, below}

(11) The court shall consider ALL of the following in determining whether to allow the individual to discontinue registration under subsection (12) {Tier I petition after 10 years} or (13) {Tier III juvenile adjudication petition after 25 years} but shall not grant the petition if the court determines that the individual is a continuing threat to the public:

(a) The individual’s age and level of maturity at the time of the offense.

(b) The victim’s age and level of maturity at the time of the offense.

(c) The nature of the offense.

(d) The severity of the offense.

(e) The individual’s prior juvenile or criminal history.

(f) The individual’s likelihood to commit further listed offenses.

(g) Any impact statement submitted by the victim under the William Van Regenmorter crime victim’s rights act, 1985 PA 87, MCL 780.751 to 780.834, or under this section.

(h) Any other information considered relevant by the court.

 

{Tier I petition for removal after 10 years}

(12) The court may grant a petition properly filed by an individual under subsection (1) if ALL of the following apply:

(a) Ten or more years have elapsed since the date of his or her conviction for the listed offense or from his or her release from any period of confinement for that offense, whichever occurred last.

(b) The petitioner has not been convicted of any felony since the date described in subdivision (a).

(c) The petitioner has not been convicted of any listed offense since the date described in subdivision (a).

(d) The petitioner successfully completed his or her assigned periods of supervised release, probation, or parole without revocation at any time of that supervised release, probation, or parole.

(e) The petitioner successfully completed a sex offender treatment program certified by the United States attorney general under 42 USC 16915(b)(1), or another appropriate sex offender treatment program. The court may waive the requirements of this subdivision if successfully completing a sex offender treatment program was not a condition of the petitioner’s confinement, release, probation, or parole.

 

{Tier III petition for removal of adjudicated juvenile after 25 years}

(13) The court may grant a petition properly filed by an individual under subsection (2) if ALL of the following apply:

(a) The petitioner is required to register based on an order of disposition entered under section 18 of chapter XIIA of the probate code of 1939 {juvenile adjudication}, 1939 PA 288, MCL 712A.18, that is open to the general public under section 28 of chapter XIIA of the probate code of 1939, 1939 PA 288, MCL 712A.28.

(b) Twenty-five or more years have elapsed since the date of his or her adjudication for the listed offense or from his or her release from any period of confinement for that offense, whichever occurred last.

(c) The petitioner has not been convicted of any felony since the date described in subdivision (b).

(d) The petitioner has not been convicted of any listed offense since the date described in subdivision (b).

(e) The petitioner successfully completed his or her assigned periods of supervised release, probation, or parole without revocation at any time of that supervised release, probation, or parole.

(f) The court determines that the petitioner successfully completed a sex offender treatment program certified by the United States attorney general under 42 USC 16915(b)(1), or another appropriate sex offender treatment program. The court may waive the requirements of this subdivision if successfully completing a sex offender treatment program was not a condition of the petitioner’s confinement, release, probation, or parole.

 

{Tiers I, II or III Petition opportunities}

(14) The court shall grant a petition properly filed by an individual under subsection (3) if the court determines that the conviction for the listed offense was the result of a consensual sexual act between the petitioner and the victim and ANY of the following apply {(a), (b) OR (c)}:

(a) ALL of the following:

(i) The victim was 13 years of age or older but less than 16 years of age at the time of the offense.

(ii) The petitioner is not more than 4 years older than the victim.

(b) ALL of the following:

(i) The individual was convicted of a violation of section 158, 338, 338a, or 338b of the Michigan penal code, 1931 PA 328, MCL 750.158, 750.338, 750.338a, and 750.338b.

(ii) The victim was 13 years of age or older but less than 16 years of age at the time of the violation.

(iii) The individual is not more than 4 years older than the victim.

(c) ALL of the following:

(i) The individual was convicted of a violation of section 158, 338, 338a, 338b, or 520c(1)(i) of the Michigan penal code, 1931 PA 328, MCL 750.158, 750.338, 750.338a, 750.338b, and 750.520c.

(ii) The victim was 16 years of age or older at the time of the violation.

(iii) The victim was not under the custodial authority of the individual at the time of the violation.

{NOTE:  The law does not define consent. Petitioners should use the dictionary definition of consent. It is very important to prove consent in the petitioning process.  Check all reports (police, preliminary exam testimony, trial testimony, sentencing transcript, pre-sentence report, witness statements, etc) for mention of anything that would suggest or help establish consent.}

 

{Tiers I, II or III Petition opportunities}

 (15) The court shall grant a petition properly filed by an individual under subsection (3) if EITHER of the following {(a) OR (b)} applies:

(a) BOTH of the following:

(i) The petitioner was adjudicated as a juvenile.

(ii) The petitioner was less than 14 years of age at the time of the offense.

(b) The individual was registered under this act before July 1, 2011 for an offense that required registration but for which registration is not required on or after July 1, 2011 {including juveniles who were under the age of 14 at the time of their offense, juveniles who were 14 or older at the time of their offense who fall into a Tier I or II, any juvenile adjudicated for a 4th degree, and individuals convicted of either 750.167(1)(f) or 750.335a(2)(a)}.

*Explanations are in {brackets and italics}.