2014 Opinion No. 13
Appeal from the District Court of the Fourth Judicial District of the State of Idaho, Ada County. Hon. Deborah A. Bail, District Judge.
The order of the district court is reversed.
Sara B. Thomas, State Appellate Public Defender, Boise, for appellant. Spencer J. Hahn argued.
Hon. Lawrence G. Wasden, Attorney General, Boise, for respondent. Lori Anne Fleming argued.
J. JONES, Justice. Chief Justice BURDICK, and Justice EISMANN, and Justice Pro Tem SCHROEDER CONCUR. HORTON, J., dissenting.
J. JONES, Justice.
David Leroy Lee appeals from the district court's order denying his motion to strike certain language from his judgment of acquittal. In that judgment, the district court declared that " [b]ecause [Lee] is a serious pedophile, it is hoped that the authorities will be able to keep a closer watch on him in the future."
FACTUAL AND PROCEDURAL HISTORY
Appellant David Leroy Lee was convicted of lewd conduct with a minor under age 16 and, as a result, is required to register as a sex offender and biannually confirm his address with the sex offender registry. Lee was also required to wear an electronic monitoring device (" ankle bracelet" ) as a condition of his parole. State v. Lee, 153 Idaho 559, 560, 286 P.3d 537, 538 (2012). In early October 2001, Lee cut off his ankle bracelet and vacated his residence. Id. Lee never filed a change of address with the sex offender registry. Id. On May 17, 2009, Lee was arrested in Belize and was thereafter extradited to Idaho in June of 2009. Id. Lee was then charged with failure to comply with the requirements of I.C. § 18-8309. Id. A jury returned a guilty verdict and the district court entered a judgment of conviction from which Lee appealed.
In State v. Lee, this Court vacated Lee's judgment of conviction on the ground that I.C. § 18-8309 does not apply to changes of residence to other countries. 153 Idaho at 561, 286 P.3d at 539. The Court ordered the district court to issue a judgment of acquittal upon remand. On remand, the district court issued a Judgment of Acquittal After Remittitur, which read:
[156 Idaho 445] The defendant was convicted after a trial by jury of the offense of Failing to Register as a Sex Offender. He registered in Idaho, cut off his ankle monitor and fled and was eventually located in Belize after traveling in the United States. . . . The Supreme Court overturned that decision by its Opinion No. 109 filed July 5, 2012. Based upon the Supreme Court's decision and a remittitur having entered, the verdict of the jury is vacated and a judgment of acquittal is entered. Because he is a serious pedophile, it is hoped that the authorities will be able to keep a closer watch on him in the future. As mandated, the judgment of acquittal is entered.
(emphasis added). Lee filed a motion to strike the italicized language above. The district court denied Lee's motion in an Order Denying Motion, which stated:
The Court entered the Judgment of Acquittal as required by the remittitur. He prevailed on appeal because of the Supreme Court's interpretation of the statute but after he had been sentenced, after he had a presentence report prepared and he had been given an opportunity to challenge all the information contained in that report so he was afforded due process. He is subject to a duty to register which pre-existed this case. Presumably, the Parole Board will have access to all of the information generated as a result of the defendant's prior offenses. The record is abundantly clear that the defendant is a risk to children. The Motion to Strike is denied.
Lee then filed a timely appeal.
ISSUE ON APPEAL