Section 28.728c - Individual convicted of violation described in subsection (15); petition; jurisdiction; limitations; oath; contents; false statement; filing copy with office of prosecution; notice;

MICHIGAN STATUTES AND CODES

Section 28.728c - Individual convicted of violation described in subsection (15); petition; jurisdiction; limitations; oath; contents; false statement; filing copy with office of prosecution; notice;

SEX OFFENDERS REGISTRATION ACT (EXCERPT)
Act 295 of 1994

28.728c Individual convicted of violation described in subsection (15); petition; jurisdiction; limitations; oath; contents; false statement; filing copy with office of prosecution; notice; entry on database; hearing; rights of victim; factors in court determination; court order; individuals with right to petition.

Sec. 8c.

(1) An individual described in subsection (15) who is convicted before October 1, 2004 of a violation described in that subsection may petition the court under this section for an order allowing him or her to register under this act as provided in section 8d(1).

(2) An individual described in subsection (15)(a) or (b) who is convicted on or after October 1, 2004 of a violation described in that subsection may petition the court under this section for an order allowing him or her to register under this act as provided in section 8d(1).

(3) 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.

(4) A petition filed under this section shall be filed in the court in which the individual was convicted of committing the listed offense. A petition filed under subsection (1) shall be filed before October 1, 2007 or within 3 years after the individual is discharged from the jurisdiction of the juvenile court or, if the individual was assigned to youthful trainee status, within 3 years after he or she has successfully completed youthful trainee status, whichever is later, and, except as otherwise provided in this subsection, the court shall not consider a petition filed by the individual after that date. A petition filed under subsection (2) shall not be filed before the individual's seventeenth birthday or after the individual's twentieth birthday. If the individual is charged in this state or elsewhere with committing, attempting to commit, or conspiring to commit a felony, other than the felony for which he or she has filed the petition for registration as provided under section 8d, or an offense that if committed by an adult would be a felony, the court may hold the petition in abeyance until the charges are finally disposed of. If the court holds the petition in abeyance, the 3-year limitation periods described in this subsection begin to run when the period of abeyance has ended. 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. As used in this subsection, “felony” means a crime that is specifically designated to be a felony or that is punishable by imprisonment for more than 1 year.

(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 registration as provided in section 8d 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.

(d) A statement specifically stating that the individual is not disqualified under subsection (14) from filing a petition under this section.

(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 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 (11).

(9) If an individual petitions the court under subsection (1) or (2) for an offense described in subsection (15)(a) or (b) and the individual is not on the database maintained under section 8(2) at the time the petition is filed, the court may order the department not to place the individual on that database during the period in which the court is considering whether to grant the petition as follows:

(a) Except as provided in subdivision (b), for a period of 30 days after the date the order is issued or as provided by the court, whichever occurs first.

(b) If jurisdiction is continued by the court past the individual's seventeenth birthday, during the period in which jurisdiction is continued. The court shall notify the department of the order as required under section 8d.

(10) 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.

(11) 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.

(12) The court shall consider all of the following in determining whether to allow the individual to register under this act as provided in section 8d:

(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.

(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 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.

(13) If the court determines that the individual meets the criteria for registration under section 8d, the court may order the individual to register under this act as provided in that section.

(14) The court shall not grant a petition filed under this section if any of the following apply:

(a) The individual was previously convicted of a listed offense for which registration is required under this act.

(b) The individual fails to carry the burden of proving by clear and convincing evidence that he or she is not likely to commit further listed offenses.

(i) A factor set forth in section 520b(1)(b) to (h) of the Michigan penal code, 1931 PA 328, MCL 750.520b.

(ii) A factor set forth in section 520c(1)(b) to (l) of the Michigan penal code, 1931 PA 328, MCL 750.520c.

(iii) A factor set forth in section 520d(1)(b) to (e) of the Michigan penal code, 1931 PA 328, MCL 750.520d.

(iv) A factor set forth in section 520e(1)(b) to (f) of the Michigan penal code, 1931 PA 328, MCL 750.520e.

(d) The individual is charged in this state or elsewhere with committing, attempting to commit, or conspiring to commit a felony, other than the felony for which he or she has filed the petition for registration as provided under section 8d, or an offense that if committed by an adult would be a felony. This subsection does not prohibit the court from holding the petition in abeyance under subsection (4). As used in this subdivision, “felony” means a crime specifically designated to be a felony or that is punishable by imprisonment for more than 1 year.

(e) The individual was sentenced for the offense as an adult. This subdivision does not apply to an individual described in subsection (15)(c) who successfully completed his or her probationary period and was discharged from youthful trainee status.

(15) The right to petition under this section applies to all of the following individuals:

(a) An individual who is convicted as a juvenile under section 520b, 520c, or 520d of the Michigan penal code, 1931 PA 328, MCL 750.520b, 750.520c, and 750.520d, of committing, attempting to commit, or conspiring to commit a violation solely described in section 520b(1)(a), 520c(1)(a), or 520d(1)(a) of the Michigan penal code, 1931 PA 328, MCL 750.520b, 750.520c, and 750.520d, if either of the following applies:

(i) The individual was under 13 years of age when he or she committed the offense and is not more than 5 years older than the victim.

(ii) The individual was 13 years of age or older but less than 17 years of age when he or she committed the offense and is not more than 3 years older than the victim.

(b) An individual who was charged under section 520b, 520c, or 520d of the Michigan penal code, 1931 PA 328, MCL 750.520b, 750.520c, and 750.520d, with committing, attempting to commit, or conspiring to commit a violation solely described in section 520b(1)(a), 520c(1)(a), or 520d(1)(a) of the Michigan penal code, 1931 PA 328, MCL 750.520b, 750.520c, and 750.520d, and is convicted as a juvenile of violating, attempting to violate, or conspiring to violate section 520e or 520g of the Michigan penal code, 1931 PA 328, MCL 750.520e and 750.520g, if either of the following applies:

(i) The individual was under 13 years of age when he or she committed the offense and is not more than 5 years older than the victim.

(ii) The individual was 13 years of age or older but less than 17 years of age when he or she committed the offense and is not more than 3 years older than the victim.

(c) An individual who has successfully completed his or her probationary period under sections 11 to 15 of chapter II of the code of criminal procedure, 1927 PA 175, MCL 762.11 to 762.15, for committing a listed offense, and has been discharged from youthful trainee status.

History: Add. 2004, Act 240, Eff. Oct. 1, 2004