Dunn v. State

686 S.E.2d 772, 286 Ga. 238, 2009 Fulton County D. Rep. 3660, 2009 Ga. LEXIS 736
CourtSupreme Court of Georgia
DecidedNovember 23, 2009
DocketS09A1369
StatusPublished
Cited by6 cases

This text of 686 S.E.2d 772 (Dunn v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dunn v. State, 686 S.E.2d 772, 286 Ga. 238, 2009 Fulton County D. Rep. 3660, 2009 Ga. LEXIS 736 (Ga. 2009).

Opinions

HINES, Justice.

This Court granted Derrick Todd Dunn’s application for a discretionary appeal from the trial court’s order revoking his probation, to determine whether OCGA § 42-1-12 violates constitutional guarantees of due process and equal protection in regard to its requirement that sexual offenders register with the sheriff within 72 hours of a change of address. For the reasons that follow, we affirm.

[239]*239Dunn is a convicted sexual offender,1 required to register with the sheriff of the county in which he resides, as set forth in OCGA § 42-1-12. Prior to January 17, 2009, he resided at a certain street address, and had registered that address. On January 17, 2009, he moved temporarily into a motel, the Calhoun Lodge, and moved to a new permanent residence on January 23, 2009. Dunn went to the Gordon County Sheriffs Office on January 26, 2009, to register his new permanent address, and was arrested for failing to register the Calhoun Lodge as a residence. See OCGA § 42-1-12 (n) (1) (specifying that failure to comply with the registration requirements is a felony).

The State filed a petition to revoke Dunn’s probation, alleging that he failed to register his address change when he moved into the Calhoun Lodge, and that he failed to obtain prior permission from his probation officer before an earlier move. Dunn filed a “Motion to Strike and Quash as Unconstitutional O.C.G.A. § 42-1-12 as Applied to Registered Sex Offenders Living at a Temporary Address.” After a hearing, the trial court revoked Dunn’s probation, rejecting his constitutional attacks on OCGA § 42-1-12.

1. Dunn asserts that OCGA § 42-1-12 violates the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States in that its requirements regarding notification of a change of address are vague.

The Due Process Clause requires that the law give a person of ordinary intelligence fair warning that specific conduct is forbidden or mandated. Vagueness may invalidate a criminal law on either of two bases: a statute may fail to provide notice sufficient to enable ordinary people to understand what conduct it prohibits or requires, or the statute may authorize and encourage arbitrary and discriminatory enforcement. Vagueness challenges to criminal statutes that do not implicate First Amendment freedoms must be examined in the light of the facts of the case to be decided.

Santos v. State, 284 Ga. 514, 514-515 (1) (668 SE2d 676) (2008) [240]*240(citations omitted).

Under OCGA § 42-1-12 (f) (5) a sexual offender is required to report to the sheriff of the county in which he resides any “change of residence address.”2 OCGA § 42-1-12 (a) (16) specifies what must be included in the “required registration information,” and OCGA § 42-1-12 (a) (16) (B) contains the particular requirement that the reported information include “any current temporary residence.”3 Dunn contends that the term “temporary residence” is unconstitutionally vague, and is not defined in the statute.

OCGA § 42-1-12 is not unconstitutionally vague in failing to [241]*241define the term “temporary residence.”

“[A] criminal statute is sufficiently definite if its terms furnish a test based on normal criteria which men of common intelligence who come in contact with the statute may use with reasonable safety in determining its command.” [Cits.] Indeed, “[a]ll the Due Process Clause requires is that the law give sufficient warning that men may conduct themselves so as to avoid that which is forbidden.” [Cits.]

Smith v. State, 285 Ga. 725, 726 (2) (681 SE2d 161) (2009). “[W]hen the phrase challenged as vague has a commonly understood meaning, then it is sufficiently definite to satisfy due process requirements.” Bradford v. State, 285 Ga. 1, 3 (2) (673 SE2d 201) (2009) (citation and punctuation omitted).

First, under the facts of this case, it is clear that Dunn did not find the term “temporary residence” vague; in fact, he had reported changes of his address at least four times. Second, under common understanding of the term, “temporary residence” is not unconstitutionally vague. “Temporary” means “[Pasting for a time only; existing or continuing for a limited (usu. short) time; transitory.” Black’s Law Dictionary (7th ed. 1999). “Residence” means “[t]he place where one actually lives, as distinguished from a domicile.” Black’s Law Dictionary (7th ed. 1999).4 Thus, a “temporary residence” is where one lives for a limited time, which is in keeping with the long recognized concept that a person may have more than one residence. See Daniel v. Allstate Ins. Co., 290 Ga. App. 898, 902 (4) (660 SE2d 765) (2008); Travelers Ins. Co. v. Mixon, 118 Ga. App. 31, 33 (162 SE2d 830) (1968). The term “temporary residence” provides fair warning to persons of ordinary intelligence as to what is required [242]*242to comply with the statute. See also Waters v. State, 248 Ga. 355, 367 (283 SE2d 238) (1981) (statute not unconstitutionally vague in failing to define the term “bodily injury”).

Nor does the statute’s use of the term “temporary residence” in any way “authorize and encourage arbitrary and discriminatory enforcement.” Santos, supra. Rather, OCGA § 42-1-12 (a) (16) sets forth in considerable detail the information that must be reported by a sexual offender, and nothing in it encourages arbitrary and discriminatory enforcement.

2. Dunn also asserts that OCGA § 42-1-12, as applied to him, violates the guarantees of equal protection under the law, found in the Fourteenth Amendment to the Constitution of the United States and Article I, Section I, Paragraph II of the Georgia Constitution, in that he is treated differently than a sexual offender who comes to Georgia from another state.

The Georgia and U. S. Constitutions require government to treat similarly situated individuals in a similar manner. The person who is asserting the equal protection claim has the burden to establish that he is similarly situated to members of the class who are treated differently from him.

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Cite This Page — Counsel Stack

Bluebook (online)
686 S.E.2d 772, 286 Ga. 238, 2009 Fulton County D. Rep. 3660, 2009 Ga. LEXIS 736, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dunn-v-state-ga-2009.