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Misunderstanding of Sex Offender Probation Doesn’t Invalidate Plea

| Dec 14, 2012 | Sex Offender

Sex offender probation requirements are generally more extensive and rigid than the typical probation requirements for other criminal convictions. Rules regarding where the probationer may live and work and what activities a probationer may engage in are generally more restrictive. A sex offender probationer’s access to the Internet may be prohibited or restricted. Failing to properly register as a sex offender can be both a new criminal offense and a probation violation. In the recent case of Privette v. State, M2011-02640-CCA-R3-PC (Tenn.Crim.App. 12-11-2012), an individual who had pled guilty to incest sought to vacate his guilty plea on the basis that neither the trial court nor his attorney properly advised him regarding the specific probationary requirements he would be subjected to as a result of the conviction.

Most specifically, the Petitioner asserted he was surprised to learn that he would have to stay away from the victim, who was his adopted daughter, and would be prohibited from using the Internet. He generally asserted that although he knew he would be subjected to special probationary requirements, he had not been advised of the details of those requirements sufficiently to have made a voluntary and knowing decision to plead guilty. He learned of the requirements from his probation officer, and believed it was too late to object to them at that point. Notably, he filed his claim for post-conviction relief after he had been found in violation of the terms of probation for failing to comply with the probationary requirements.

After hearing the testimony of the Petitioner and the Petitioner’s trial counsel, the post-conviction court found the Petitioner was generally advised that sex offender registration and special probationary conditions would be required. On appeal of the post-conviction court’s denial of relief, the Court of Criminal Appeals also noted that, unlike the mandatory lifetime community supervision requirement which applies to some sex crimes, the registration requirements are not considered punitive, but collateral consequences. So there is no constitutional error from not addressing the registration requirements or probation requirements on the record at the guilty plea hearing.

For more information on probationary requirements or collateral consequences of certain criminal convictions, contact Hindman & Associates.

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