☢ test - Í

Owens v. Urbina, 296 Ga. 256, 765 S.E.2d 909 (November 17, 2014). Following Urbina’s guilty plea to interference with custody, a felony in Alabama but a misdemeanor in Georgia, superior court properly enjoined Georgia Department of Corrections from requiring him to register as a sex offender. Urbina was originally indicted for child sex abuse and enticing a child, but that indictment was nolle prossed upon his plea to interference with custody. “Based on the record related to Urbina's actual conviction for Interference with Custody in Alabama as it now exists, which is limited to the facts contained in the information and guilty plea form, it cannot be said that the crime in issue is a ‘conviction resulting from an underlying sexual offense against a victim who is a minor.’ OCGA § 42–1–12(a)(9)(A)(vii). The information, which is the only factual basis of record for Urbina's guilty plea, states that he ‘did knowingly take or entice a child under the age of 18, ... from the lawful custody of [her] parent, guardian, or other lawful custodian.’ Even if this act could be considered a felony under Georgia law, it would not constitute a sexual offense. … [Department of Corrections]'s arguments focusing on the underlying facts of Urbina's original indictment do not change this result.” Smith v. State, 328 Ga.App. 885, 763 S.E.2d 269 (August 26, 2014). Physical precedent only. Following guilty plea to felony statutory rape, trial court properly denied “motion to enforce sentence,” seeking a declaration that defendant wasn’t required to register as a sex offender. 1. Defendant contends (correctly) that he specifically wasn’t required to register as a sex offender by terms of his negotiated plea; however, “the regulatory requirements of OCGA § 42–1–12 are independent of any term or condition of probation that could be imposed by the trial court. Compare OCGA § 42– 8–35(b) with OCGA § 42–1–12(e). Therefore, his motion to enforce the terms and conditions of his sentence is ineffectual to address the regulatory mechanism requiring him to register as a sex offender.” 2. Rule of lenity doesn’t apply because “[t]here is no ambiguity in the language of OCGA § 42–1–12 describing the categories of individuals that must register as a sex offender. [Cits.] Moreover, OCGA § 42–1–12 is not a criminal statute that prescribes punishment. While ‘registrants face extensive restrictions on where they can live, work, and volunteer,’ Taylor v. State, 304 Ga.App. 878, 884(1), 698 S.E.2d 384 (2010), the registry requirements ‘are regulatory, and not punitive, in nature.’ Rainer v. State, 286 Ga. 675, 676(1), 690 S.E.2d 827 (2010). See Rogers v. State, 297 Ga.App. 655, 657, 678 S.E.2d 125 (2009) (‘[T]he designation of a person as a sexual offender is neither a sentence nor a punishment but simply a regulatory mechanism and status resulting from the conviction of certain crimes [Cits.]’).” 3. “ OCGA § 42–1–12(a)(8) provides that a conviction, for purposes of the sex offender registry, includes a plea of guilty and those sentenced as first offenders,” such as defendant. “As Smith has not yet been discharged for the completion of his sentence, he is required to register as a sex offender pursuant to OCGA § 42–1–12(a)(9)(B)(iii) for having committed a ‘crime against a victim who is a minor.’” Loya v. State, 321 Ga.App. 430, 740 S.E.2d 382 (March 22, 2013). Conviction and sentence for public indecency (based on urinating in public) affirmed; although not automatically required, trial court could impose sex offender registration as a condition of probation. 1. “The State essentially concedes that Loya's conviction does not fall within the type of conviction for which sexual offender registration is required , and our review of OCGA § 42–1–12 confirms Loya's position.” 2. Trial court has discretion to require sex offender registration as a condition of probation, citing Hollie v. State, 287 Ga. 389, 390(1) (696 S.E.2d 642) (2010), and such condition was reasonable here: “Loya exposed himself to a female motorist and, considered along with his prior convictions, [fn] the trial court was authorized to conclude that Loya was a recidivist who engages in a type of sexual offense harmful to the public. The condition was tailored to the crime and is a reasonable condition under the circumstances. Requiring Loya to register is also reasonable because registration is considered regulatory and not punitive in nature, and the argument that registration is cruel and unusual punishment under the Eighth Amendment has been rejected. Wiggins v. State, 288 Ga. 169, 172(3), (4) (702 S.E.2d 865) (2010); Rainer v. State, 286 Ga. 675, 676(1) (690 S.E.2d 827) (2010).” Notes that such requirement would expire at end of probation. “ Hollie, supra at 390–391(2).” Price v. State, 320 Ga.App. 85, 738 S.E.2d 289 (February 7, 2013). Defendant’s sentence for invasion of privacy upheld. Trial court properly imposed sex offender conditions of probation under OCGA § 42-8-35(b) where defendant secretly videotaped his stepdaughter coming out of the shower and naked in her room. OCGA § 42-8-35(b) applies “if Price was convicted of a ‘criminal offense against a victim who is a minor’ or a ‘dangerous sexual offense’ as defined in OCGA § 42–1–12(a)(9)(B) and (a)(10)(B). [fn] While Price's conviction does not constitute a criminal offense under the majority of the offenses listed in those subsections, both subsections include ‘[a]ny conduct which, but its nature, is a sexual offense against a victim who is a minor.’ OCGA §§ 42–1–12(a)(9)(B)(xi) and (a)(10)(B)(xix). And ‘criminal offense against a victim who is a minor’ also includes ‘criminal sexual conduct toward a minor.’ OCGA § 42–1– 12(a)(9)(B)(iii). ‘In determining whether the conduct toward the minor was sexual in nature, courts must look to the underlying facts of the conviction in question. This inquiry may include looking to the underlying facts as set forth in the indictment or accusation.’ (Citations omitted.) Rogers v. State, 297 Ga.App. 655, 656, 678 S.E.2d 125 (2009). Under the facts here, the trial court was authorized to conclude that Price's conduct of secretly videotaping his