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Schwab v. State (11/28/2008) ap-2197

Schwab v. State (11/28/2008) ap-2197

     The  text  of this opinion can be corrected before  the
     opinion  is published in the Pacific Reporter.  Readers
     are  encouraged to bring typographical or other  formal
     errors  to  the attention of the Clerk of the Appellate

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) Court of Appeals No. A-9958
Appellant, ) Trial Court No. 3PA-04-3265 CR
v. )
) O P I N I O N
Appellee. ) No. 2197 November 28, 2008
Appeal    from    the
          District  Court,  Third  Judicial  District,
          Palmer, Gregory Heath, Judge.

          Appearances:  Steven  M.  Wells,  Steven  M.
          Wells,  LLC, and Gayle J. Brown,  Anchorage,
          for  the  Appellant.  Blair M.  Christensen,
          Assistant  Attorney General, Anchorage,  and
          Talis  J. Colberg, Attorney General, Juneau,
          for the Appellee.

          Before:   Coats, Chief Judge, and Mannheimer
          and Stewart, Judges.

          STEWART, Judge.

          In  May  2006, Max C. Schwab was convicted  of  second-
degree indecent exposure.1  When Schwab was released from prison,
the  Department of Public Safety notified him that he was obliged
to  register  as a sex offender.  In March 2007, Schwab  filed  a
          motion in his district court criminal case, asking the district
court to amend his sentence to specify that he would not have  to
register as a sex offender.2
          District  Court  Judge  Gregory  Heath  denied  Schwabs
motion to amend the sentence.  But when Schwab indicated that  he
intended  to  appeal the courts decision, Judge Heath  ordered  a
stay  of  Schwabs  sex  offender  registration  requirement.   In
essence,  Judge  Heath issued a restraining order  directing  the
Department  of Public Safety not to enforce Schwabs  registration
requirement until Schwabs appeal was resolved.
          The underlying controversy in this case has nothing  to
do with Schwabs sentence.  As we explained in Herreid v. State3:
          [T]he     registration     and     reporting
          requirements  imposed by the  [Sex  Offender
          Registration]  Act  are  not   part   of   a
          defendants sentence.  Peterson v. State, 988
          P.2d   109,   115  (Alaska   App.1999).    A
          sentencing  court has no power to  exempt  a
          defendant from the requirements of  the  Act
          nor,  for  that  matter, does  a  sentencing
          court  have the power to impose sex offender
          registration  and reporting on  a  defendant
          whose  crime  does  not  qualify  as  a  sex
          offense under AS 12.63.100(1) or (6).[4]
Thus,  nothing that the district court might do to amend  Schwabs
sentence for indecent exposure would either affirm or negate  the
validity  of  the  Departments  decision  to  require  Schwab  to
register as a sex offender.

          Schwabs   underlying  claim  is  a  challenge   to   an
administrative decision of the Department of Public Safety.  This
claim  could not be raised in Schwabs criminal case.   Nor  would
the  district court have had jurisdiction to consider this  claim
even  if  Schwab  had  filed  a  civil  lawsuit  challenging  the
Departments decision.5
          Challenges to the decisions of administrative  agencies
must  be  pursued  by  filing a civil action  or  appeal  in  the
superior  court.6   For this reason, the district  court  had  no
jurisdiction to rule on Schwabs claim  no jurisdiction either  to
grant  or deny it.  And for this same reason, the district  court
had  no authority to issue a stay that purported to exempt Schwab
from the duty to register as a sex offender pending resolution of
this appeal.
          For  these  reasons, the two decisions of the  district
court in this case  the decision rejecting Schwabs request to  be
exempted   from  sex  offender  registration  and  the   decision
restraining the Department from enforcing its ruling pending  the
resolution of this appeal  are both VACATED.  The district  court
had no authority to make these decisions.
          If  Schwab  wishes to challenge the Departments  ruling
that  he must register as a sex offender, he must seek relief  in
the superior court.

     1 AS 11.41.460(a).

     2  It  appears  that  both Schwab and the  State  mistakenly
believed  his sentence contained a provision requiring Schwab  to
register  as a sex offender.  In fact, the sentencing record  and
the judgment are silent on this point.

     3 69 P.3d 507 (Alaska App. 2003).

     4 Id. at 508 (emphasis removed).

     5  See AS 22.15.030-050 (defining the civil jurisdiction  of
the district court).

     6   See  AS  22.10.020(d);  Alaska  Appellate  Rule  601(b);
Higgins v. Briggs, 876 P.2d 539, 543-44 (Alaska App. 1994).

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