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State v. Davis

Supreme Court of Georgia

May 21, 2018

THE STATE
v.
DAVIS.

          BOGGS, JUSTICE.

         We granted this petition for certiorari to consider two questions: First, whether this Court's constitutional question jurisdiction is invoked by the issue of the authority of the Board of Pardons and Paroles to remove the requirements imposed upon sex offenders by OCGA § 42-1-12 under its constitutional power "to remove disabilities imposed by law, " Ga. Const. Art. IV, Sec. II, Par. II (a). Second, if that question is answered in the affirmative, whether the trial court erred in concluding that the registration and reporting requirements of that Code section are not a "disability" within the meaning of the Board's constitutional powers, and therefore denying Davis' general demurrer. For the reasons stated below, we answer both questions in the affirmative. We therefore must vacate the judgment of the Court of Appeals, decide the constitutional claims presented by this petition, and reverse the trial court's judgment.[1]

         In 1995, Barry Craig Davis pled guilty to aggravated sodomy against his six-year-old daughter and was sentenced to ten years with two to serve in confinement. After the enactment of OCGA § 42-1-12 in 1996, he was required to register for life as a sex offender upon his release on probation. After his release from prison, Davis' probation terminated on July 15, 2005. On February 13, 2013, Davis obtained a pardon from the Board of Pardons and Paroles ("the Board"):

WHEREAS, an application for a Pardon has been filed by the above named individual; and
WHEREAS, having investigated the facts material to the pardon application, which investigation has established to the satisfaction of the Board that the pardon applicant is a law-abiding citizen and is fully rehabilitated;
THEREFORE, pursuant to Article IV, Section II, Paragraph II (a), of the Constitution of the State of Georgia, the Board, without implying innocence, hereby unconditionally fully pardons said individual, and it is hereby
ORDERED that all disabilities under Georgia law resulting from the above stated conviction(s) and sentence(s), as well as, any other Georgia conviction(s) and sentence(s) imposed prior thereto, be and each and all are hereby removed; and
ORDERED FURTHER that all civil and political rights, except the right to receive, possess, or transport in commerce a firearm, lost under Georgia law as a result of the above stated conviction(s) and sentence(s), as well as, any other Georgia conviction(s) and sentence(s) imposed prior thereto, be and each and all are hereby restored.[2]

Ga. Const. Art. IV, Sec. II, Para. II (a) provides:

Except as otherwise provided in this Paragraph, the State Board of Pardons and Paroles shall be vested with the power of executive clemency, including the powers to grant reprieves, pardons, and paroles; to commute penalties; to remove disabilities imposed by law; and to remit any part of a sentence for any offense against the state after conviction.

         Shortly after receiving the pardon, Davis moved to North Carolina without providing notice within 72 hours to the Chatham County Sheriff as required of sex offenders by OCGA § 42-1-12 (f) (5). He was indicted for violation of that Code section by "fail[ing] to update his address, required registration information, with the Sheriff of Chatham County. . . within 72 hours prior to such change of residence . . . ." He filed a general demurrer to the indictment for failure to charge a criminal offense, contending that the requirement to register as a sex offender was removed by the pardon. After a hearing, the trial court, relying on Rainer v. State, 286 Ga. 675, 675-676 (1) (690 S.E.2d 827) (2010), held that the requirement to register is merely regulatory rather than punitive in nature, and therefore does not constitute a legal disability. It further concluded, based upon an opinion of the Attorney General, that "legal disability" within the meaning of the pardon extends only to the right to hold office, to vote, and to serve on a jury. 1954-1956 Op. Atty Gen. 508, 509 (Dec. 21, 1956). Accordingly, the trial court found that, in the absence of express language in the Board's decree, Davis' pardon does not release him from the obligation to register as a sex offender. It therefore denied the general demurrer.

         The trial court granted a certificate of immediate review, and Davis applied for interlocutory review with the Court of Appeals, which granted the application. In Davis v. State, 340 Ga.App. 652 (798 S.E.2d 474) (2017), the Court of Appeals conducted a thorough analysis of the pardon powers of the Board, finding that the plain language of the Constitution, Board rules, and the pardon itself "constrained [it] to conclude" that the requirement to register as a sex offender was a legal disability which was removed by the Board's pardon. Id. at 660. It therefore reversed the trial court's denial of Davis' motion for a general demurrer. Id. at 662.[3]

         This Court granted certiorari on August 14, 2017, posing the following questions:

(1)Whether this Court's constitutional question jurisdiction is invoked by the question of whether the authority of the Board of Pardons and Paroles to remove "disabilities imposed by law, " Ga. Const. Art. IV, Sec. II, Par. II (a), encompasses the authority to remove requirements imposed on sex offenders under OCGA § 42-1-12; and
(2)Whether the sex offender registration requirements are a legal disability [and] are removed by the Board's order granting a pardon and removing all ...

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