Moreover, “the applicable statute [for determining whether a person must register] is the statute that exist [s] at the time of [that person's] release from prison,” and thus it is unknown whether Thompson will be required to register. Hazel v. State, 377 S.C. 60, 64, 659 S.E.2d 137, 139 (2008). Thompson's projected release date is August 5, 2020, and he is not currently registered on the sex offender registry.
Moreover, "the applicable statute [for determining whether a person must register] is the statute that exist[s] at the time of [that person's] release from prison," and thus it is unknown whether Thompson will be required to register. Hazel v. State, 377 S.C. 60, 64, 659 S.E.2d 137, 139 (2008). Because the law does not require Thompson to register as a sex offender until he is released from prison, and because the sex offender registry statute may be amended between now and Thompson's release, we find the circuit court properly dismissed Thompson's action.
In its Respondent's Brief, the State asserts that the family court did not have subject matter jurisdiction to consider Appellant's request to remove his name from the Sex Offender Registry. This issue was not raised below and was not ruled on by the family court, but subject matter jurisdiction may be raised for the first time on appeal. See, e.g., Amisub ofS.C., Inc. v. Passmore, 316 S.C. 112, 114, 447 S.E.2d 207, 208 (1994) ("Lack of subject matter jurisdiction may not be waived and should be taken notice of by this Court."). The State asserts the family court did not have subject matter jurisdiction to determine this matter because it is a court of limited jurisdiction and Appellant should have filed an action for a declaratory judgment in the court of common pleas to challenge the requirement that he must be placed on the registry, citing the recent case of Hazel v. State, 377 S.C. 60, 659 S.E.2d 137 (2008). We disagree.
In Hazel v. State , we held that a person convicted of kidnapping could not challenge whether he was required to register as a sex offender until the date of his release from prison, because that issue is entirely dependent on the sex offender registry statute in existence at that time. 377 S.C. 60, 64, 659 S.E.2d 137, 139 (2008) (detailing the history of the sex offender registry as it related to kidnapping offenses). Here, Thompson will not be released from prison until 2020. Because there is no way to determine whether the General Assembly will amend section 23–3–430(C)(15) prior to 2020, a declaration that Thompson is not required to register as a sex offender in the future would be purely advisory.
S.C. Code Ann. §§ 23-3-400 to -555 (2007 & Supp. 2011). We affirm the circuit court's order pursuant to Rule 220(b)(1), SCACR, and the following authorities: Hazel v. State, 377 S.C. 60, 659 S.E.2d 137 (2008) (citing section 15-53-20 of the Declaratory Judgment Act, which provides that courts of record within their respective jurisdictions shall have power to declare rights, status, and other legal relations whether or not further relief is or could be claimed, and concluding that the Court of Common Pleas had the power to make a factual finding as to whether respondent's kidnapping conviction required him to register as a sex offender); S.C. Code Ann. § 63-3-510(B) (2010) (formerly codified as section 20-7-400 and stating, "Whenever the court has acquired the jurisdiction of any child under seventeen years of age, jurisdiction continues so long as, in the judgment of the court, it may be necessary to retain jurisdiction for the correction or education of the child, but jurisdiction shall terminate when the child attains the age of twenty-one years. Any child who has been adjudicated delinquent
Thus, the onus is on the defendant to demonstrate to the court that the offense did not have sexual undertones. Although there was no cause to make such a finding in his original plea, Lozada could have presented such evidence in his declaratory judgment petition. See Hazel v. State, 377 S.C. 60, 65, 659 S.E.2d 137, 140 (2008). Moreover, when he pled guilty to unlawful restraint, Lozada also pled guilty to indecent assault arising out of the same incident. Indecent assault occurs when a person “has indecent contact with the complainant, causes the complainant to have indecent contact with the person or intentionally causes the complainant to come into contact with seminal fluid, urine or feces for the purpose of arousing sexual desire in the person or the complainant.”
Thus, the onus is on the defendant to demonstrate to the court that the offense did not have sexual undertones. Although there was no cause to make such a finding in his original plea, Lozada could have presented such evidence in his declaratory judgment petition. See Hazel v. State, 377 S.C. 60, 65, 659 S.E.2d 137, 140 (2008). Moreover, when he pled guilty to unlawful restraint, Lozada also pled guilty to indecent assault arising out of the same incident. Indecent assault occurs when a person "has indecent contact with the complainant, causes the complainant to have indecent contact with the person or intentionally causes the complainant to come into contact with seminal fluid, urine or feces for the purpose of arousing sexual desire in the person or the complainant."
Before denying relief on other grounds, the court determined that the defendant had a right to seek relief from the registration requirement through a declaratory judgment action based on the Tennessee Declaratory Judgment Act. It concluded that a declaratory judgment suit is appropriate when the petitioner seeks a determination of how his rights and status are effected by the Registration Act and whether the Act is valid as applied to him. Id. at *6; see also John Doe v. Robert E. Cooper, Jr., Tenn. Attorney General, No. M2009-00915-COA-R3-CV, 2010 WL 2730583 (Tenn. Ct. App. July 9, 2010) (declaratory judgment action in which Petitioner challenges as unconstitutional the retroactive application of the Tennessee Sexual Offender Registration, Verification, and Tracking Act of 2004); Hazel v. State, 659 S.E.2d 137 (S.C. 2008) (holding in declaratory action that defendant convicted of kidnapping was not required to register as sex offender because no finding on the record that sexual misconduct was involved in the offense). Relief based on coram nobis is not warranted.
We agree. We are aware of Hazel v. Slate, 377 S.C. 60, 659 S.E.2d 137 (2008) (Shearouse Adv. Sh. No. 9 at 52). Hazel, however, does not apply to this case because retrospective application of the registration statute was not an issue in Hazel.