Criminal Practice – Sex Offender Registration – Removal From List – Subject Matter Jurisdiction

In re Hutchinson (Lawyers Weekly No. 12-07-0140, 7 pp.) (Linda Stephens, J.) Appealed from Brunswick County Superior Court. (Ola M. Lewis, J.) N.C. App. Click here for full-text opinion.

Holding: Where the state agreed to the removal of a sex offender from its sex offender registry, it cannot ask the courts to rescind the removal because offenders are required to be registered for 10 years when the state raises that issue for the first time on appeal. The trial court, which upheld the removal, has subject matter jurisdiction on petitions of termination of registration even when the sex offenders have been registered in North Carolina for less than the normally requisite 10 years.

Background

After being charged with failing to update his address in compliance with the state’s sex offender registry requirements, Robert Dale Hutchinson filed a petition in Brunswick County Superior Court to terminate his registration requirement altogether. At a hearing in January 2011, the request was granted and sent to the State Bureau of Investigation, which reviewed the trial court’s order and removed Hutchinson from the sex offender registry. The SBI notified the Brunswick County Sheriff‘s Department of the removal on Feb. 4, 2011. Five days later, however, the SBI filed a notice of appeal of the trial court’s order and a motion to stay its enforcement.

At a hearing in superior court, the state, despite agreeing to Hutchinson’s removal and complying with it, argued that Hutchinson should be reinstated on the registry. Over Hutchinson’s objections, a temporary stay was granted. Hutchinson appealed on July 28, 2011, seeking a writ of certiorari and/or a writ of supersedeas. On July 29, the Court of Appeals temporarily stayed the superior court’s action and on Aug. 10, the court granted the writ of supersedeas, stayed the superior court’s order until resolution of “all further proceedings in this matter” and ordered that “Hutchinson shall not be reinstated to the sexual offender registry at this time.” On Aug. 15, Hutchinson filed a motion to dismiss the state’s appeal, arguing that the state had not properly preserved any issues for appeal.

Discussion

A contention not raised and argued in the trial court may not be raised and argued for the first time on appeal. Because the state failed to argue to the trial court that Hutchinson’s registration requirement could not be terminated because he had not been registered for the requisite 10 years, that argument was not available to them on appeal.

The state’s other argument, that the case presents an issue of subject matter jurisdiction, was unpersuasive.

In In re Borden [Lawyers Weekly No. 11-07-1107] , we reversed a trial court’s termination of the petitioner’s registration requirement on the ground that the petitioner had not been registered in North Carolina for at least 10 years. Borden did not hold that the trial court lacked jurisdiction to rule on the petition in the first place because the petitioner had not been registered in North Carolina for 10 years.

On the contrary, Borden held that “the trial court erred when it terminated [the petitioner’s] sex offender registration requirement,” and we reversed the trial court’s order. The obvious implication from reversing the order was that the trial court did have subject matter jurisdiction to terminate a sex offender’s registration before the normally requisite 10 years.

Having failed to preserve its sole argument on appeal, the state’s appeal is dismissed; the writ of supersedeas and temporary stay are dissolved; the writ of certiorari is granted; and the superior court’s stay is dissolved.