Santos v. State

CARLEY, Justice,

dissenting.

As I understand the majority opinion, it holds that the sex offender registration requirements of OCGA § 42-1-12 with respect to the offender’s address are unconstitutionally vague as applied to homeless sex offenders who do not possess a street or route address, including those who have just lost such an address. The majority clearly does not hold that such an offender, including Santos, is exempt either from updating other required information as it changes or from renewing his registration annually pursuant to OCGA § 42-1-12 (f) (4). However, the majority opinion ignores basic principles of statutory construction when it broadly finds an “absence of any language in the statute providing direction or a standard of conduct applicable to offenders who do not possess a street or route address .. . .” (Maj. op. p. 516.) Furthermore, the majority’s consideration of the constitutional issue of vagueness would be entirely unnecessary under a proper interpretation of OCGA § 42-1-12.

The majority opinion erroneously states that “OCGA § 42-1-12 mandates that offenders register a change of residence by providing the sheriff of their county a specific street or route address.” (Maj. op. pp. 515-516.) To the contrary, the statute does not contain any such mandate. The only relevant mandate is found in OCGA § 42-1-12 (f) (5), which reads as follows:

*518Any sexual offender required to register under this Code section shall. . . [u]pdate the required registration information with the sheriff of the county in which the sexual offender resides within 72 hours of any change to the required registration information, other than residence address; if the information is the sexual offender’s new residence address, the sexual offender shall give the information to the sheriff of the county with whom the sexual offender last registered within 72 hours prior to any change of residence address and to the sheriff of the county to which the sexual offender is moving within 72 hours after establishing the new residence ....

The first part of this mandate requires the sex offender to update the “required registration information” within 72 hours of any change, “other than residence address.” That single exception is then specifically explained in the latter portion of subsection (f) (5). Where, as here, a statute contains both a general provision and a specific one, the particular provision must control, and the general one must be taken to affect those situations which do not come within the particular provision. Krieger v. Walton County Bd. of Commissioners, 269 Ga. 678, 681 (2), fn. 16 (506 SE2d 366) (1998); Mayor &c. of Savannah v. Savannah Elec. & Power Co., 205 Ga. 429, 436-437 (54 SE2d 260) (1949). Thus, the latter, more particular provision of OCGA § 42-1-12 (f) (5) applies “if the information is the sexual offender’s new residence address,” and all other changes to required registration information come within the first, more general provision.

At least two effects of this analysis are relevant here. In the first place, subsection (f) (5) does not provide that the sexual offender is required to possess and give a new residence address to the sheriff. Instead, provision of that information is mandated only if the change to the required registration information is a new residence address. Neither subsection (a) (1) nor (a) (16) imposes any requirement that the sexual offender possess a residence address. Subsection (a) (1) merely defines the term “address,” and subsection (a) (16) (B) defines “required registration information” to include the “[aid-dress of any permanent residence and address of any current temporary residence, within the state or out of state, and, if applicable in addition to the address, a rural route address and a post office box . . . .” Indeed, other portions of subsection (a) (16) specify the information necessary with respect to certain places of residence which do not have an address. OCGA § 42-1-12 (a) (16) (C) (motor vehicle or trailer), (F) (vessel or houseboat). Accordingly, OCGA § 42-1-12 does not require the sex offender to have an address, *519although he must report any address which he does possess. Because that requirement is wholly inapplicable to a sex offender without an address, it obviously is unnecessary to consider whether the statute provides him with fair notice of how to comply with that requirement. See Twine v. State, 910 A2d 1132, 1136, fn. 3 (Md. 2006). It is likewise unnecessary to consider whether the statute provides law enforcement authorities with clear guidelines regarding what information is required from such an offender in order to comply with the inapplicable requirement. “This Court will not decide constitutional issues if the case can be decided on other grounds. [Cit.]” Patel v. State, 282 Ga. 412, fn. 1 (651 SE2d 55) (2007).

A second effect of the correct construction of OCGA § 42-1-12 (f) (5) is that, although a sex offender who loses an address without acquiring another is not required to comply with the latter, specific part of that subsection, he nevertheless must comply with the more general portion. Therefore, such an offender must remove the invalid address from his registration in a timely manner, even though he is not required to obtain a new residence address. To construe OCGA § 42-1-12 (f) (5) so as to require a sex offender to update his address information only when he takes a new address would constitute sophistry and would frustrate the legislative purpose. See State v. Ohmer, 832 NE2d 1243,1245-1246 (III) (Ohio App. 2005). The proper construction of the statute

requires offenders who leave their registered address, but do not gain a new . . . residing address to nonetheless notify law enforcement of this change. Allowing sex offenders to circumvent the registration process by physically leaving one residence without technically acquiring a new residence would permit the offender to “slip through the cracks,” disappear from law enforcement view and thus thwart the purpose for which this law was enacted.

State v. Rubey, 611 NW2d 888, 892 (II) (N.D. 2000). If Santos lost his temporary address when he was asked to leave the shelter, he was required to report that fact to the sheriff. However, the indictment does not charge him with failing to report the loss of his address. Rather, it alleges that he “did fail to give his new residence address to the sheriff . . ..” Thus, Santos cannot be convicted of failure to register as a sex offender in the absence of any proof that he possessed a new residence address at some point after leaving the shelter and prior to his arrest.

Although this case has not yet proceeded to trial, I assume, for purposes of this dissent only, that this Court is authorized to consider the stipulations of facts and circumstances which the *520parties filed in the trial court. See Hall v. State, 268 Ga. 89 (485 SE2d 755) (1997); State v. Brannan, 267 Ga. 315, 317, fn. 4 (477 SE2d 575) (1996); Schuman v. State, 264 Ga. 526 (448 SE2d 694) (1994). In pertinent part, those stipulations show, at most, that Santos was homeless from the date he left the shelter until the date of his arrest two months later and that, at the end of that period, he did not have a street or route address. The majority makes an unsupported assumption that, during the entire two-month period, Santos “did not possess a street or route address that complied with the requirements of OCGA § 42-1-12 (a) (1).” (Maj. op. p. 515.). However, I have not located any agreement by the State that Santos had no street or route address at any point during the relevant period. The fact that Santos was homeless during that time does not constitute any proof one way or the other. A homeless person may or may not have a residence address. An “address” as defined in OCGA § 42-1-12 (a) (1) includes any permanent or temporary street or route address and, if a homeless person has such an address, he cannot merely register a post office box or “homeless” as his residence address. See also OCGA § 42-1-12 (a) (16) (B). Therefore, as the majority recognizes, OCGA § 42-1-12 “does not exempt homeless sex offenders who are able to provide a street or route address, such as the address of a shelter at which they are staying.” (Maj. op. p. 517.) In the absence of a concession by the State that Santos did not possess such an address at any point during the relevant period, resolution of this case by means of a motion to quash or demurrer to the indictment clearly is premature.

The only remaining issues posed in this interlocutory appeal which are neither effectively answered nor rendered moot in this dissent relate to punishment. Even if this dissenting opinion prevailed, the prosecution would end if the State determined that it lacks evidence that Santos obtained a new residence address. Because of that real possibility, analysis of the remaining sentencing issues at this time would neither serve judicial economy nor meet the standard for consideration of interlocutory matters. Supreme Court Rule 31. In this case, those issues would be more appropriately considered on appeal from a final judgment of conviction and sentence. Accordingly, I dissent to the reversal of the trial court’s denial of the “demurrer/motion to quash” filed by Santos.

I further note that the majority opinion leaves, and, to a lesser extent, even my construction of OCGA § 42-1-12 as set forth above would leave,

in place an imperfect system for keeping track of transient sex offenders. ... [I] strongly encourage the Legislature to reexamine the [statute] and enact [more] specific registra*521tion requirements that will apply to all transient offenders. ... A separate scheme, perhaps in a separate section or subdivision, may be advisable. Transient offenders could be required to designate locations where they can be found at certain times, or to register at specified intervals with the law enforcement agency in whichever jurisdiction they are located when the interval expires.
Decided October 27, 2008. Adam S. Levin, H. Bradford Morris, Jr., Brett M. Willis, for appellant. Lee Darragh, District Attorney, Vanessa E. Sykes, Assistant District Attorney, for appellee. Gerald R. Weber, Jr., Sarah E. Geraghty, Melanie Velez, Stephen R. Scarborough, Parag Y. Shah, Lynne Y. Borsuk, Laura D. Hogue, amici curiae.

People v. North, 5 Cal. Rptr. 3d 337, 348 (3) (Cal. App. 2003). Such alternatives are found in the statutes of sister states, a few of which are listed in the majority opinion. (Maj. op. p. 516.) Of course, I must “leave the weighing of alternative solutions to the Legislature. It is uniquely within the legislative province to collect information and ideas for developing a more comprehensive registration system for transient sex offenders.” People v. North, supra.