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Child molester’s failure to register conviction vacated

December 12, 2016

A convicted child molester will not also have a conviction of failure to register as a sex offender after the Indiana Court of Appeals found Monday that his arrest was premature.

In Richard Dobeski v. State of Indiana, 49A02-1603-CR-440, Richard Dobeski was convicted of Class C felony child molesting in 2008 and was subsequently required to register as a sex offender upon release from prison. When he was released July 16, 2015, a transportation van carrying Dobeski left the prison at 9:30 a.m. and arrived in Indianapolis at 11:15 a.m.

When a sergeant in the Marion County Sheriff’s Office checked the sex offender registry sometime after 1 p.m. on July 23, he found that Dobeski had not yet registered, so he was arrested sometime between 2 and 2:30 p.m.  

At trial, the state argued that a full seven days had elapsed between Dobeski’s release and arrest and that “days” referred to full 24-hour periods beginning with the moment Dobeski was released. Thus, he was required to register by 11:15 a.m. on July 23, and his failure to do so justified the arrest that occurred after 2 p.m. But Dobeski argued that state statute gave him seven calendar days to register, so he had until midnight on July 23 to do so.

The Marion Superior Court found in favor of the state, so Dobeski appealed. The state presented two arguments on appeal – first, that a “day” constitutes a 24-hour period, and second that if a “day” means a calendar day and Dobeski’s day of release was included, then he only had until midnight on July 22 to register.

But in a Monday opinion, the Indiana Court of Appeals wrote that both of the state’s arguments were deficient and reversed Dobeski’s conviction of failure to register.

Judge Robert Altice, writing for the majority panel, pointed out that Indiana Code and trial rules explicitly state that the time within which an act must be done, such as registering as a sex offender, excludes the first day. In this case, that means that Dobeski’s seven-day window did not begin on the day of his release.

Further, Altice wrote that Indiana caselaw traditionally defines a “day” as a 24-hour period and that the state pointed to no evidence to suggest otherwise.

Thus, the state’s arrest of Dobeski was premature, the appellate court wrote, so the case was remanded with instructions to vacate his conviction.

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