State v. Otness, 061698 AKDC, 4FA-S97-3812 CR

Docket Nº:4FA-S97-3812 CR
Opinion Judge:JANE F. KAUVAR, District Court Judge
Party Name:State Of Alaska, Plaintiff, v. Wendell Otness, Defendant.
Case Date:June 16, 1998
Court:District Court of Alaska
 
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State Of Alaska, Plaintiff,

v.

Wendell Otness, Defendant.

No. 4FA-S97-3812 CR

District Court of Alaska, Fourth Judicial District, Fairbanks

June 16, 1998

UNPUBLISHED

MEMORANDUM DECISION REGARDING MOTION TO DISMISS

JANE F. KAUVAR, District Court Judge

Defendant Wendell Otness was charged with violation of AS 11.56.840, for failing to register as a convicted sex offender. He moved to dismiss the charge on the ground that he was not a "convicted" sex offender, based on the fact that his conviction had been set aside prior to the effective date of the Act.

FACTS:

Wendell Otness entered a plea of No Contest to Attempted Sexual Abuse of a Minor in the Second Degree, a Class C felony offense on March 11, 1986. He was granted a Suspended Imposition of Sentence by Judge Hodges, and a Discharge Order was signed on March 13, 1989. On December 5, 1997, Otness was charged with Failing to Register as a Sex Offender. These facts are agreed to by both parties.

QUESTION:

Does AS 11.56.840, which requires convicted sex offenders to register, apply to people whose convictions were set aside prior to the Act becoming effective?

DISCUSSION:

The defendant raises a number of challenges to AS 11.56.840, commonly referred to as the Alaska Sex Offender Registration Act (ASORA). Many of these challenges have been previously ruled on and denied, e.g. double jeopardy, ex post facto. The issue of whether defendant is a convicted sex offender within the meaning of the statute has not been decided by an appellate court, but has been ruled on by other lower courts. The rulings from other trial courts in Alaska are in conflict on this question.

The statute does not define the meaning of convicted sex offender. However, the statute gave the Department of Public Safety the mandate to pass regulations to implement the Act. The Department of Public Safety, by regulation, included in the class of people who would be required to register, people who had previously been convicted, but had their convictions set aside prior to the effective date of the Act. Defendant objects to...

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