Burk v. State ex rel. Department of Corrections
349 P.3d 545
| Okla. | 2013Background
- Jonathan Burk pleaded no-contest to New Mexico sex offenses in 1999 and was later required to register under Oklahoma's SORA beginning July 24, 2007.
- Burk was notified May 21, 2008 that he had been assigned risk level 3 and required to register for life; he contends he had previously understood his registration term to be ten years.
- Burk filed a Motion to Override Risk Level Classification on October 19, 2009 to seek reduction of his assigned level before a November 1, 2009 statutory amendment barred courts from reducing level assignments.
- The Department argued the November 1, 2009 amendment divested courts of jurisdiction to reduce level assignments and also challenged service; the trial court denied Burk’s motion for lack of jurisdiction on January 13, 2010.
- On appeal the Oklahoma Supreme Court reversed, holding the motion was filed before the amendment took effect and that Starkey requires level assignments be applied prospectively; remanded for further proceedings to determine which registration rules applied when Burk first became subject to SORA.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether court retained jurisdiction to decide an override filed before statutory amendment | Burk: Motion filed Oct 19, 2009 — statute in effect at filing governs; proceeding begun is protected from amendment | Dept: Nov 1, 2009 amendment removed court power to reduce levels, intended retroactive effect | Court: Held Burk timely filed; amendment did not divest jurisdiction over a proceeding begun pre-amendment |
| Whether retrospective application of level assignments could extend/restart registration | Burk: Level-assignment system cannot be applied retroactively to increase his registration | Dept: Implied the level assignment could alter his registration status | Court: Cited Starkey — level assignments apply prospectively; retroactive application would violate ex post facto protections |
| Whether the trial court properly dismissed for defective service | Burk: Served motion under motion-service rules; dismissal premature given time allowed to serve process | Dept: Contended no proper summons/service under petition rules | Court: Did not rely on service; even if service issue existed, dismissal would have been premature given statutory service period |
| What registration term governs given uncertain date Burk became subject to SORA | Burk: Believes he was required to register for ten years | Dept: Points to level assignment and Department determination for life registration | Court: Remanded to determine when Burk first became subject to SORA and which SORA provisions controlled (e.g., ten years from completion of sentence vs other terms) |
Key Cases Cited
- Cole v. Silverado Foods, 78 P.3d 542 (Okla. 2003) (statute in effect at time of filing governs; proceedings begun are protected from later amendments)
- Starkey v. Oklahoma Department of Corrections, 305 P.3d 1004 (Okla. 2013) (SORA level assignments apply prospectively; retroactive application violates ex post facto protections)