WELCH, Judge.
On August 6, 2003, Timothy Alan Burt was convicted of first-degree sexual abuse and sentenced to prison. At some point Burt was released from prison. On August 5, 2010, a two-count indictment was returned charging him in circuit court case CC-10-1797 with violating his duty under the then in effect "Community Notification of Released Convicted Sex Offenders" Act, (also known as the "Community Notification Act," i.e., "the CNA"), §§ 15-20-20 through -38, Ala.Code 1975, to file with certain law-enforcement personnel 30 days' prior notice of his intent to move to a different residence, a violation of § 15-20-23(a), Ala.Code 1975, and with failing to comply with the requirement of the then in effect CNA that prohibited a convicted adult sex offender from residing where a person 18 years old or younger resides, a violation of § 15-20-26(c), Ala.Code 1975. Both offenses are Class C felonies. On June 28, 2011, Burt was indicted in circuit court case CC-11-1387 for again failing to comply with the requirement of the then in effect CNA that he file a notice with law-enforcement personnel at least 30 days before moving to a different residence, a violation of § 15-20-23, Ala.Code 1975.
Effective July 1, 2011, the "Community Notification of Released Convicted Sex Offenders" Act, §§ 15-20-20 through 15-20-38, Ala.Code 1975, was expressly repealed by Act No. 2011-640, § 49, Ala. Acts 2011, and on that date replaced with the "Alabama Sex Offender Registration and Community Notification Act." This act is codified in the Alabama Code as §§ 15-20A-1 through -48.
On May 31, 2012, prior to the commencement of Burt's guilty-plea hearing, counsel for Burt filed written motions asking the circuit court to dismiss the charges against him. In both motions counsel argued that the charges were due to be dismissed because § 15-20-23 had been repealed by Act No. 2011-640, (§§ 15-20A-1 et seq., Ala.Code 1975), without providing a "savings clause for prosecutions for violating the statutes that were repealed." (C. 33, 77.) The motion asserted:
Burt contends on appeal that the circuit court erred when it denied his motions to dismiss the indictments. Typically, "`[w]hether a trial court's denial of a motion to dismiss an indictment was error is reviewed under an abuse-of-discretion standard of review.'" Long v. State, 14 So.3d 184, 185 n. 1 (Ala.Crim.App.2008) (quoting Hunter v. State, 867 So.2d 361, 362 (Ala.Crim.App.2003)). However, here, because the issue presented involves a review of the circuit court's conclusion of law and its application of the law to undisputed facts, this Court applies a de novo standard of review. Washington v. State, 922 So.2d 145, 158 (Ala.Crim.App.2005). Burt argues on appeal, as he did in his written motions and at the hearing on those motions, that "because [§ 15-20-23,] the statute establishing the offense[,] was repealed and there was no savings clause, Burt's motions to dismiss should have been granted." (Burt's brief, at p. 3.)
Citing Williams v. State, 565 So.2d 282, 286 (Ala.Crim.App. 1990), and Ex parte Jefferson, 473 So.2d 1110, 1111 n. 1 (Ala. 1985), the State contends that Burt's argument is without merit because the applicable law is the law in effect at the time an offense is committed. The State asserts that § 15-20-23, which required 30 days' prior notice before changing residence, was the law in effect at the time of the commission of Burt's offenses; thus, according to the State, the circuit court properly denied his motions to dismiss. Additionally, the State asserts that the new statute continued to require registration; the new statute merely modified the time in which a sex offender must provide notice to authorities before a sex offender may change his or her residence. Therefore, according to the State, because the new statute, like the old statute, required a sex offender to register a change in his or her residence, the old statute was not repealed.
Williams and Jefferson, cited by the State, are not applicable here. Both Williams and Jefferson involved a repealing statute that provided a clause saving the prosecution of conduct occurring before the effective date of the new statute. Williams concerned conduct occurring in December 1986 resulting in a criminal indictment under the Alabama Uniform Controlled Substances Act, § 20-2-70, Ala. Code 1975. That statute was repealed on October 21, 1987, as part of the Drug Crimes Amendments Act of 1987, Act No. 87-603, Ala. Acts 1987,
Jefferson was charged for his April 17, 1981, conduct that violated § 13A-5-31(a)(2), Ala.Code 1975, a statute imposing capital punishment. Effective July 1, 1981, the 1981 capital-offense statute, Act No. 81-178, Ala.1981, p. 204,
Act No. 2011-640, § 49, the "Alabama Sex Offender Registration and Community Notification Act," effective July 1, 2011, and codified at §§ 15-20A-1 through 15-20A-48, expressly repealed the entire CNA formally codified at § 15-20-20 through § 15-20-38, Ala.Code 1975. The repealing statute did not provide an express savings clause.
1 Wayne R. LaFave, Substantive Criminal Law § 2.5 Repeal or Amendment of Statute (2d ed. October 2012).
However, in Burt's case, the repeal of §§ 15-20-20 through 15-20-38 was not an "outright repeal" because at the same time as the repeal, the legislature essentially re-enacted the repealed statute, which is now codified at §§ 15-20A-1 through 15-20A-48, Ala.Code 1975. This action does not suggest an intent by the legislature to "pardon" conduct subject to the repealed statute.
LaFave; 37 Am. J.Crim. L. 1, 27 In with the New, Out with the Old: Expanding the Scope of Retroactive Amelioration (Fall 2009) ("The court's power and authority to maintain a previously commenced prosecution should continue unabated when the legislature repeals and reenacts or amends a statute.").
37 Am. J.Crim. L. at 27 (Fall 2009)(discussing the repeal of a criminal statute and reenacting a similar statute having a greater sentence).
The United States Supreme Court stated the following in Bear Lake & River Waterworks & Irrigation Co. v. Garland, 164 U.S. 1, 12, 17 S.Ct. 7, 9, 41 L.Ed. 327 (1896).
Bear Lake & River Waterworks & Irrigation Co. v. Garland, 164 U.S. 1, 12, 17 S.Ct. 7, 9, 41 L.Ed. 327 (1896). Arizona condensed the above as follows:
State v. Babbitt, 457 A.2d 1049, 1054 (R.I. 1983).
Alabama has made similar findings:
Allgood v. Sloss-Sheffield Steel & Iron Co., 196 Ala. 500, 502, 71 So. 724, 725 (1916); see also, State v. Youngstown Mining Co., 219 Ala. 178, 180, 121 So. 550, 552 (1929) ("The repeal of a statute without a saving clause does not destroy vested rights theretofore accruing."); Tucker v. McLendon, 210 Ala. 562, 564, 98 So. 797, 799 (1924) ("`The repeal and simultaneous re-enactment of substantially the same statutory provisions is to be construed not as an implied repeal of the original statute, but as a continuation thereof.'" (quoting 39 Cyc. 1084(E))); Haden v. Lee's Mobile Homes, Inc., 41 Ala.App. 376, 136 So.2d 912 (1961)(same).
Section 15-20-23(a), Ala.Code 1975 (repealed), required an adult criminal sex offender to submit at least 30 days prior notice to specified law-enforcement authorities of his or her intent to change residence.
This statute was replaced with § 15-20A-10(c)(1) and (c)(2), Ala.Code 1975, which continues the requirement that an adult sex offender notify authorities of every residence change. The difference between the reenacted and the repealed statute is that the reenacted statute dispenses with the requirement of the repealed statute that authorities be provided with 30 days prior notice of an intent to change residences, and instead requires an adult sex offender to immediately notify authorities upon transferring or terminating any residence.
§ 15-20A-10(c), Ala.Code 1975.
The Alabama Legislature expressed its intent to maintain prosecutions for failing to register a transfer of residence when it stated the following in its "findings" section of the new statute:
§ 15-20A-2(1), Ala.Code 1975.
Moreover, the legislature demonstrated its intent not to pardon a failure to register when it stated in § 15-20A-2(a) that "[t]his chapter is applicable to every adult sex offender convicted of a sex offense as defined in Section 15-20A-5, without regard to when his or her crime or crimes were committed or his or her duty to register arose."
In this case, the facts underlying the acceptance of the guilty plea were that Burt had changed his residence without registering at all. Thus, Burt violated both the law as it existed under the repealed statute and the law as it exists under the re-enacted statute. Burt's conduct is exactly the type of conduct that violated the intent of the legislature to identify, monitor, and track sex offenders.
Although §§ 15-20A-1 through 15-20A-48 were enacted without a savings clause saving the repealed statute, it is clear that the legislature intended that conduct punishable under the repealed statute was not pardoned; the legislature actually lowered the burden placed on a sex offender by removing the requirement of providing prior notice of an intent to move to another residence. However, the complete failure to register, as is Burt's case, violated both the repealed and the reenacted statute, and under both the repealed and reenacted statute, the conduct was, and remains, punishable as a Class C felony. Moreover, this change has no adverse retroactive effect
For the reasons set forth above, Burt's convictions are affirmed.
AFFIRMED.
WINDOM, P.J., and BURKE, J., concur.
KELLUM and JOINER, JJ., concur in the result.