Missouri's attorney general and the Highway Patrol should not have been blocked from being part of a sex offender registry case, a unanimous state Supreme Court ruled Tuesday.
Heath A. Dunivan, now 42, of Camdenton, pleaded guilty in October 1993 to one count of second-degree sexual abuse for a 1992 incident in Lebanon involving a 13-year-old girl, when he was 19.
He was required to register as a sex offender.
On March 29, 2012, Dunivan asked the Laclede County circuit court to remove him from Missouri's sex offender registry and relieve him from the registration requirement. A provision of the state's Sex Offender Registration Act says some offenders can petition for removal from the registry at least two years after the conviction. The offender had to be 19 or younger and the victim was 13 or older; no physical violence or threat could have been used in the offense.
Dunivan notified the Laclede County prosecuting attorney about his petition, but the law doesn't require any notice be sent to the attorney general or the Patrol.
The prosecutor represented the state at a May 7, 2013, hearing, but didn't cross-examine Dunivan or offer any argument in opposition to his petition, according to the Supreme Court's ruling.
The circuit court granted Dunivan's requests, and later made a docket entry: "Court finds issues in favor of (Dunivan) and against (the state)." On May 20, 2013, the circuit court issued a written order Dunivan be removed from the registry and be relieved from his registration obligation, but the order was not designated as a "judgment" and wasn't directed to anyone to take the actions needed.
Court records show the attorney general and the patrol received a copy of the May 20 order. The attorney general filed a motion on behalf of both agencies to intervene under the Supreme Court's rules. The motion also asked the court to set aside its order, arguing Dunivan's Missouri registration requirement was based on an independent federal requirement.
The court eventually denied the attorney general's motion and issued a second order making its ruling a final judgment.
The Southern District appeals court in Springfield upheld Circuit Judge Kenneth Hayden's rulings, and the attorney general appealed to the Supreme Court.
The high court's 13-page opinion overturned Hayden's ruling and sent the case back to the trial court.
Judge George Draper III, writing for the seven-judge Supreme Court, noted state law gives the attorney general the power to "appear and interplead, answer or defend, in any proceeding or tribunal in which the state's interests are involved."
Dunivan argued the attorney general's motion to intervene came 91 days after the order removing him from the sex offender registry. But, Draper wrote, since Hayden had not designated his order as a "judgment," as the Supreme Court's rules require so that a final order can be appealed, the case wasn't final when the attorney general sought to intervene.
Additionally, Draper wrote, the state "has an interest in a circuit court's judgment ordering the removal of a sex offender's name from Missouri's sex offender registry" - and that's an "unconditional" right, even if the local prosecuting attorney represents the state at a hearing.
Tuesday's ruling also upheld the Highway Patrol's right to be part of Dunivan's case because it is required to maintain the sex offender registry, including complying with any court order to remove or exempt someone from the registry.