DATE OF JUDGMENT: 05/06/2013.
ADAMS COUNTY CIRCUIT COURT, HON. LILLIE BLACKMON SANDERS,
TRIAL COURT ATTORNEYS: KEVIN COLBERT, PAUL A. KOERBER.
FOR APPELLANT: PAUL ANDERSON KOERBER.
FOR APPELLEES: OFFICE OF THE ATTORNEY GENERAL, BY: JOHN R. HENRY, JR., R. STEVEN COLEMAN.
PIERCE, JUSTICE. WALLER, C.J., RANDOLPH, P.J., AND LAMAR, J., CONCUR. COLEMAN, J., CONCURS IN PART AND IN RESULT WITHOUT SEPARATE WRITTEN OPINION. KITCHENS, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY DICKINSON, P.J., CHANDLER AND KING, JJ.
¶1. Carey Jason Witten was convicted in Sacramento County, California, of oral copulation and rape of a person " . . . unconscious of the nature of the act . . ." in violation of California Penal Code Sections 261(a)(4) and 288a(f). Upon his conviction, Witten was granted five years' probation, and he received an order of dismissal
after successful completion of his probation, pursuant to California Penal Code Section 1203.4. The dismissal order that was entered in California regarding Witten's conviction, pursuant to Section 1203.4, states the following:
This Order does not relieve the subject of the obligation to disclose the conviction in response to any direct question contained in any questionnaire or application for public office or for licensure by State or local agency, for contracting with the California State Lottery.
Dismissal pursuant to this Section does not permit a person to own, possess or have custody or control of any firearm, or prevent conviction under Section 12021 of the Penal code.
On October 2, 1996, Carey Jason Witten was granted 5 years probation upon conviction of violation of Section 288a(f) PC and 261(a)(4) PC [sic].
Good cause appearing and the court being fully advised, it is now ordered that a plea of not guilty be entered herein/the verdict of guilty be set aside and that the accusatory pleading in this cause be, and same is hereby dismissed pursuant to section 1203.4 of the Penal Code.
¶2. Witten has since relocated to Mississippi and filed a petition for relief from the duty to register in the Circuit Court of Adams County, Mississippi, pursuant to Mississippi Code Section 45-33-47(4). At the hearing on the matter, Witten argued that his order of dismissal from California satisfied the requirements of Mississippi Code Section 45-33-47(4), such that Witten should be relieved of the duty to register as a sex offender in Mississippi. The assistant district attorney agreed with Witten, stating that his research of California Penal Code Section 1203.4
led him to believe that dismissals pursuant to this section resulted in the expungement of the defendant's record in California. The State communicated that it also believed that Witten's dismissal order met the requirements of a dismissal or set aside conviction, as is specified in Mississippi Code Section 45-33-47(4), thus Witten should be relieved of the duty to register. The trial court agreed and subsequently entered an order relieving Witten of the duty to register as a sex offender in Mississippi.
¶3. R. Steven Coleman, on behalf of the Mississippi Department of Public Safety, Criminal Information Center, Sex Offenders Registry, filed a Mississippi Rule of Civil Procedure 60(b) motion to set aside and render as void the trial court's order relieving Witten of the duty to register, based on Mississippi and California statutes that were not presented to the trial court at the hearing and that have bearing on whether or not Witten must register as a sex offender. The motion was heard by the trial court, and the trial court ultimately granted the motion to set aside and render as void the earlier judgment.
¶4. Witten now appeals to this Court for a determination on the following issues:
I. Whether the Adams County Circuit Court erred as a matter of law in its utter disregard for the plain wording and meaning of Mississippi Code Section 45-33-23 by ignoring the legislative pronouncement, as applicable to this action, that there is not a " conviction," in as much as no " determination of judgment of guilt" for a sexual offense against the Appellant, since any prior adjudication by the Superior Court of ...