The justices acknowledged state law spells out that anyone who is required to register as a sex offender must inform the sheriff of a new address within 72 hours of moving. But Justice Clint Bolick, writing for the unanimous court, said he and his colleagues read that to apply when there is actually a new address to report.
In this case, Bolick said that Lynn L. Burbey, after being discharged from a halfway house, was living on the streets in Tucson near the intersection of Speedway and Alvernon Boulevard. And with no actual address, Bolick said Burbey violated no laws and his conviction of failure to register – and the seven-year prison term imposed – must be overturned.
Robb Holmes, an assistant Pima County legal defender, said that means Burbey, incarcerated since 2014, will be released from prison.
Holmes also said the ruling means that other transients who were convicted of not meeting the 72-hour registration deadline also could seek to have their convictions overturned and be released from prison. But he did not know how many might be affected.
Friday’s ruling does not absolve convicted sex offenders who are homeless from registration. Bolick pointed out that a separate provision of the law requires that transients without a fixed address must register and check in with the sheriff every 90 days.
Court records show that Burbey, a convicted sex offender, was released from prison in April 2014 to a halfway house. The records do not show the reason for his initial conviction.
In his initial registration, he listed the address of that facility as his residence.
In September, after leaving the halfway house, he became homeless. He did not notify the sheriff’s department that he was no longer living there nor did he register as a transient.
Burbey was arrested within a month after he admitted to Tucson police he did not report a change of address.
At trial, his attorney argued that, being homeless, the only requirement Burbey had was to register as a transient every 90 days. But Pima County Superior Court Judge Scott Rash told jurors that did not excuse him from the 72-hour reporting mandate.
Bolick acknowledged the two laws can be confusing. But he said it made no sense to impose a 72-hour reporting requirement on someone like Burbey.
“Reading the statute to encompass reporting a homeless person’s chance of ‘residence’ or ‘address’ could trigger the same notice requirement every time the person moves from one street location to another,” he wrote.
“As a transient person would have neither an address nor a residence to report, it would seem implausible that the 72-hour requirement to report a new address or residence would apply,” Bolick said. “Indeed, if a cardboard box or a spot by a dumpster is a ‘residence’ for purposes of the 72-hour reporting requirement, then ‘moving’ from it to another transient location would repeatedly trigger the reporting requirement, which would render the 90-day transient registration requirement largely pointless.”
Bolick also pointed out that the statute does not require reporting within 72 hours of moving from a residence – something that would have allowed for the arrest and conviction of Burbey – but instead mandates registration of a new residence or address. And Burbey had none.
“Logically, a person either has a residence or is transient, but cannot be both,” the justice said. And he said if the location where a homeless person spends the night were a “residence,” there would be no need for the part of the law requiring transients to check in every 90 days.
Bolick also noted that the 90-day requirement was added to the law in 2006 because lawmakers recognized there were problems with homeless people complying with that 72-hour requirement. That, the judge said, shows legislators wanted the provision on transients to be in place of the 72-hour notice, not in addition to it.
“It would not make it easier for homeless persons to comply with the statute if it created a new requirement in addition to the notification requirement rather than replacing it,” he said.
Bolick said if lawmakers want registered sex offenders to have to notify the sheriff within 72 hours of becoming homeless they are free to rewrite it.
There was no immediate response from the Attorney General’s Office, which had defended the conviction.