Indiana Code 11-8-8-22. Procedure for retroactive application of ameliorative statutes
(b) Subsection (g) applies to an offender required to register under this chapter if, due to a change in federal or state law after June 30, 2007, an individual who engaged in the same conduct as the offender:
Terms Used In Indiana Code 11-8-8-22
- Appeal: A request made after a trial, asking another court (usually the court of appeals) to decide whether the trial was conducted properly. To make such a request is "to appeal" or "to take an appeal." One who appeals is called the appellant.
- Attorney: includes a counselor or other person authorized to appear and represent a party in an action or special proceeding. See Indiana Code 1-1-4-5
- Conviction: A judgement of guilt against a criminal defendant.
- Judgment: means all final orders, decrees, and determinations in an action and all orders upon which executions may issue. See Indiana Code 1-1-4-5
- Jurisdiction: (1) The legal authority of a court to hear and decide a case. Concurrent jurisdiction exists when two courts have simultaneous responsibility for the same case. (2) The geographic area over which the court has authority to decide cases.
- local law enforcement authority: means the:
Indiana Code 11-8-8-2
- register: means to report in person to a local law enforcement authority and provide the information required under section 8 of this chapter. See Indiana Code 11-8-8-4
- sex offender: means a person convicted of any of the following offenses:
Indiana Code 11-8-8-4.5
- sex or violent offender: means a person convicted of any of the following offenses:
Indiana Code 11-8-8-5
- Sheriff: means the sheriff of the county or another person authorized to perform sheriff's duties. See Indiana Code 1-1-4-5
- Trial: A hearing that takes place when the defendant pleads "not guilty" and witnesses are required to come to court to give evidence.
(2) would be required to register under this chapter but under less restrictive conditions than the offender is required to meet.
(c) A person to whom this section applies may petition a court to:
(1) remove the person’s designation as an offender and order the department to remove all information regarding the person from the public portal of the sex and violent offender registry Internet web site established under IC 36-2-13-5.5; or
(2) require the person to register under less restrictive conditions.
(d) A petition under this section shall be filed in the circuit or superior court of the county in which the offender resides. If the offender resides in more than one (1) county, the petition shall be filed in the circuit or superior court of the county in which the offender resides the greatest time. If the offender does not reside in Indiana, the petition shall be filed in the circuit or superior court of the county where the offender is employed the greatest time. If the offender does not reside or work in Indiana, but is a student in Indiana, the petition shall be filed in the circuit or superior court of the county where the offender is a student. If the offender is not a student in Indiana and does not reside or work in Indiana, the petition shall be filed in the county where the offender was most recently convicted of a crime listed in section 5 of this chapter.
(e) After receiving a petition under this section, the court may:
(1) summarily dismiss the petition; or
(2) give notice to:
(A) the department;
(B) the attorney general;
(C) the prosecuting attorney of:
(i) the county where the petition was filed;
(ii) the county where offender was most recently convicted of an offense listed in section 5 of this chapter; and
(iii) the county where the offender resides; and
(D) the sheriff of the county where the offender resides;
and set the matter for hearing. The date set for a hearing must not be less than sixty (60) days after the court gives notice under this subsection.
(f) If a court sets a matter for a hearing under this section, the prosecuting attorney of the county in which the action is pending shall appear and respond, unless the prosecuting attorney requests the attorney general to appear and respond and the attorney general agrees to represent the interests of the state in the matter. If the attorney general agrees to appear, the attorney general shall give notice to:
(1) the prosecuting attorney; and
(2) the court.
(g) A court may grant a petition under this section if, following a hearing, the court makes the following findings:
(1) The law requiring the petitioner to register as an offender has changed since the date on which the petitioner was initially required to register.
(2) If the petitioner who was required to register as an offender before the change in law engaged in the same conduct after the change in law occurred, the petitioner would:
(A) not be required to register as an offender; or
(B) be required to register as an offender, but under less restrictive conditions.
(3) If the petitioner seeks relief under this section because a change in law makes a previously unavailable defense available to the petitioner, that the petitioner has proved the defense.
The court has the discretion to deny a petition under this section, even if the court makes the findings under this subsection.
(h) The petitioner has the burden of proof in a hearing under this section.
(i) If the court grants a petition under this section, the court shall notify:
(1) the victim of the offense, if applicable;
(2) the department of correction; and
(3) the local law enforcement authority of every county in which the petitioner is currently required to register.
(j) An offender may base a petition filed under this section on a claim that the application or registration requirements constitute ex post facto punishment.
(k) A petition filed under this section must:
(1) be submitted under the penalties of perjury;
(2) list each of the offender’s criminal convictions and state for each conviction:
(A) the date of the judgment of conviction;
(B) the court that entered the judgment of conviction;
(C) the crime that the offender pled guilty to or was convicted of; and
(D) whether the offender was convicted of the crime in a trial or pled guilty to the criminal charges; and
(3) list each jurisdiction in which the offender is required to register as a sex offender or a violent offender.
(l) The attorney general may initiate an appeal from any order granting an offender relief under this section.
As added by P.L.216-2007, SEC.30. Amended by P.L.103-2010, SEC.2; P.L.214-2013, SEC.13.