PHOENIX (AP) - The Arizona Supreme Court on Friday overturned the conviction and seven-year prison sentence of a sex offender who failed to register with authorities when he left a halfway house and became homeless in Tucson.
The high court said in a ruling that could affect an unknown number of other convictions that lower courts were wrong in finding that 45-year-old Lynn Lavern Burbey broke the law by failing to register his address within 72 hours.
State law says sex offenders with registration requirements must report their new address within that time. But under a 2006 change in the law, people who are homeless are given 90 days to report where they are staying.
Justice Clint Bolick wrote for the unanimous court that because Burbey was a transient he fell under the 90-day rule and not the shorter requirement that led to his conviction following his 2014 arrest. “Logically, a person either has a residence or is transient, but cannot be both,” Bolick wrote.
He noted that requiring transients to re-register every time they changed where they slept would lead to unintended results. “That would defeat the acknowledged purpose of the 2006 amendment adding the transient registration requirement: ’to ease compliance for homeless persons,’ ” Bolick wrote.
Attorney Sarah Mayhew of the Pima County Public Defender’s office said she has a client now sitting in prison who was convicted under similar circumstances, and the office will review at least several other cases. Her client’s case is up for review at the Supreme Court as well.
The 90-day registration requirement was enacted to increase compliance for the homeless population, she said.
“If you make it 72 hours, it’s so onerous for someone who needs to be constantly figuring out where they’re going to sleep and how to get the bus fare to get to the sheriff’s office to register,” Mayhew said. “Hopefully we’ll see some increased compliance, and it will make life a little bit easier for our homeless population.”
Mayhew said it is common for police and prosecutors in Pima County to bring charges against homeless sex offenders for failing to register within 72 hours, and the person is frequently pushed to take a plea agreement to avoid a lengthy prison sentence such as the one Burbey received.
Reached late Friday afternoon, Pima County Attorney’s Office spokeswoman Stephanie Coronado said she couldn’t immediately comment on the ruling or say how common such prosecutions are because top officials were unavailable.
Burbey was released from prison to a halfway house in April 2014 and registered with the county sheriff as a sex offender. He left the house in September and became homeless. He did not notify the sheriff that he moved or re-register and was arrested within a month.
He’s been in jail or prison since his arrest and is currently at the state prison in Kingman.
His appeals attorney, Robb Holmes of the county legal defender’s office, said he will now be released.
The Supreme Court case doesn’t detail why he’s required to register, but Corrections Department records show a 2006 conviction for attempted sexual abuse and a 2007 conviction for attempted sexual assault, both in Pima County.
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