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State of Idaho v. Gary Lee Hartwig

February 2, 2011

STATE OF IDAHO, PLAINTIFF-RESPONDENT,
v.
GARY LEE HARTWIG, STEPHEN KENYON, CLERK DEFENDANT-APPELLANT.



Appeal from the District Court of the Third Judicial District of the State of Idaho, Owyhee County. Hon. Gregory M. Culet, District Judge.

The opinion of the court was delivered by: Horton, Justice

Boise, September 2010 Term

2011 Opinion No. 9

The district court order granting motion to reconsider and order reinstating defendant's requirement to register as a sexual offender is vacated.

In 1991, Gary Lee Hartwig pled guilty to one count of lewd and lascivious conduct with an eight-year-old child. He received a suspended sentence and was placed on probation. In 1993, the Legislature enacted sex offender registration requirements. As he was on probation at the time, Hartwig was required to register.

In 2008, Hartwig filed a petition seeking to be released from the sex offender registration requirements. After a hearing, the district court found that Hartwig had shown by clear and convincing evidence that he was not a risk to commit a new violation for a violent crime or a crime identified in I.C. § 18-8304 and ordered that Hartwig be released from the registration requirements. Forty-one days later, the state filed a motion for reconsideration, arguing that Hartwig was ineligible for release from the registration requirements. The district court granted the state's motion and reinstated Hartwig's registration requirements.

In this appeal, the parties have focused their arguments on Hartwig's claims that the statutory prohibition against exempting those convicted of aggravated offenses from sex offender registration requirements violates his constitutional rights. We do not reach these claims because we find that the district court lacked subject matter jurisdiction to amend its order exempting Hartwig from the duty to register as a sex offender.

I. FACTUAL AND PROCEDURAL BACKGROUND

In 1991, Hartwig was charged with and pled guilty to the crime of lewd and lascivious conduct with a minor under the age of sixteen, I.C. § 18-1508. The Information filed in the case alleged that the victim was eight years old at the time of the offense. Hartwig received a suspended ten-year sentence, with five years fixed and was placed on probation for ten years.

In 1993, the Legislature passed the Sex Offender Registration Act, I.C. §§ 18-8301 to 18- 8311. 1993 Idaho Sess. Laws ch. 155, § 1, p. 392. In 1998, the Legislature repealed the Sex Offender Registration Act, 1998. Idaho Sess. Laws ch. 411, § 1, p. 1276, replacing the earlier legislation with the Sexual Offender Registration Notification and Community Right-to-Know Act (SORA). 1998 Idaho Sess. Laws ch. 411, § 2, p. 1276. Hartwig was required to comply with the sex offender registration requirements of the Act because he was on probation for a violation of I.C. § 18-1508 on July 1, 1993. I.C. § 18-8304(1)(d).

By order dated September 23, 1998, the district court terminated Hartwig's probation and dismissed the case with prejudice.

In 2001, SORA was amended. The amendment created a new class of sexual crime, the "aggravated offense." 2001 Idaho Sess. Laws ch. 194, § 1, p. 659. Lewd conduct, when the victim is less than twelve years old, was included as an aggravated offense. I.C. § 18-8303(1).*fn1 The inclusion of this new class of offenses is important because a person convicted of an aggravated offense cannot be exempted from the duty to register as a sexual offender. I.C. § 18- 8310(1).

In 2006, Hartwig filed a petition for exemption from SORA's registration requirements. The district court denied that petition. In 2008, Hartwig again petitioned the district court for release. The district court held a hearing on September 12, 2008, and found that Hartwig had "met his burden" of providing clear and convincing evidence that he was not a risk to commit any future violent crime or any crime identified in I.C. § 18-8304 as required by I.C. § 18-8310(1) (a). On October 1, 2008, the district court issued its "Order Pursuant [to] 18-8310 Releasing Defendant from Registration Requirements."

On November 10, 2008, the state moved for reconsideration of the October 1, 2008 order, arguing for the first time that Hartwig was an "aggravated offender" as defined in I.C. § 18- 8303(1) and was, therefore, ineligible for exemption from sexual offender registration requirements under I.C. § 18-8310. Two hearings followed during which the district court considered Hartwig's contentions that the state was not permitted to seek reconsideration under the Idaho Rules of Civil Procedure and that applying the 2001 ...


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