March 27, Before Division One: Michael Peters appeals a Jackson County Circuit Court judgment dismissing with prejudice his declaratory-judgment petition which sought to remove his name from the Missouri Sex Offender Registry. Peters argues that the court erred in sustaining the sheriff's motion to dismiss without allowing him an opportunity to respond and be heard on the merits of his claim that he was not required under either state or federal law to register as a sex offender for a criminal misdemeanor conviction.
We reverse and remand for further proceedings. He claimed that his crime did not involve a minor, although the physical injury to which he admitted was, according to the sheriff's motion to dismiss, caused by Mr.
Peters touching the victim's vagina. Peters was notified by the county sheriff's office that he was required to register as a sex offender or risk immediate arrest for a felony.
He duly registered, and then filed for declaratory judgment in August , seeking to remove his name from the registry. Peters then filed another petition for declaratory relief in February In that petition, Mr. Peters sought a declaration that he was not required to register as a sex offender under either state or federal law. He did not bring his claim for relief under section Peters was required to register under both federal and state law and was not among those individuals eligible for removal under subsections 7 and 8 of Missouri's Sex Offender Registry Act SORA.
The sheriff also argued that Mr. Peters's claims in dismissing Mr. Peters's August petition. Fourteen days after the motion to dismiss was filed and without receiving a response to or hearing argument on the motion, the court found that Mr. Peters's petition with prejudice. Peters timely filed this appeal. Legal Analysis In the sole point relied on, Mr.
Peters argues that the trial court erred in granting the motion to dismiss without giving him an opportunity to respond because he has stated a cause of action and the rules of civil procedure afford him that opportunity.
The sheriff responds not by addressing the merits but by relying on the argument that we can affirm on any ground asserted in the motion to dismiss and that Mr. Peters's petition was time-barred under section Jenkins Diesel Power, Inc.
All parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule The trial court entered its judgment fourteen days after the sheriff filed a motion to dismiss which referred therein to a prior judicial proceeding as well as the facts underlying Mr.
Peters's criminal conviction, matters that were outside the pleadings, thus converting it to a motion for summary judgment. Peters had thirty days after service of the motion to respond. Peters's petition met the elements of a recognized cause of action or of a cause that might be adopted in the case, which we must do under our de novo review standard on the appeal of grant of a motion to dismiss.
We do not weigh the factual allegations to determine their credibility or persuasiveness. Rather, the trial court determined the case merits, deciding that Mr.
Peters, because he was not convicted of an offense under chapter or of sexual conduct involving a minor, also includes within its ambit any person required to register under federal law. The federal sex offender registration statute, 42 U. Department of Justice rules, 72 Fed. The sheriff argued in his motion to dismiss that Mr. Peters's crime fit this definition because the underlying crime, but not the statutory elements of third-degree assault, involved sexual contact.
Peters been given the opportunity to address this argument, he could have cited for the trial court's consideration U. Peters, however, did not have the opportunity to make this argument, so we must remand the matter for the trial court to allow him to do so.
Peters's argument appears to implicate 18 U. This argument is not fully briefed by either party, so we do not consider it further, although it can be addressed if Mr. Peters raises the matter on remand. In addition, we are inclined to reject the sheriff's attempt to apply the time limits of successive removal petitions under state law given that Mr. Peters did not base his petition on section Peters is ineligible to file a removal petition under section We further question the time-bar's applicability where a prior proceeding ends in dismissal rather than denial.
Without deciding the merits of Mr. Peters's petition, we conclude that he must be given the opportunity to respond and be heard as to the merits of what was, in effect, the sheriff's summary-judgment motion. This point is granted. Conclusion Because the trial court erred in failing to give Mr. Peters an opportunity to respond or be heard before dismissing his declaratory-judgment petition with prejudice, we reverse and remand for further proceedings. The sheriff indicated in the motion to dismiss that Mr.
Peters's crime involved recklessly causing physical injury to the victim, which falls within section For this offense, the court was authorized to sentence Mr. Peters to a term of imprisonment not to exceed one year.
Peters, the court suspended the imposition of sentence and placed him on probation for two years. The sheriff referred to this prior action, which is not the subject of this appeal, in his motion to dismiss the petition at issue in this appeal.
According to the case. Peters's first declaratory-judgment action as to the defendant state highway patrol superintendent without a response or hearing.
The sheriff requests that we take judicial notice of this case. The court found that Mr. Peters's first petition failed to state a claim for relief because he is required to register under state law in that he is a sex offender under federal law. The court then dismissed with prejudice Mr. Peters's first declaratory-judgment action as to the defendant sheriff, also without a response or hearing. Peters contends that the time-bar of section Statutory references are to RSMo.
Rule references are to the Missouri Rules of Civil Procedure , unless otherwise indicated. We find merit as well to Mr. Peters's argument that, by challenging the merits of his claims rather than the sufficiency of his averments, the sheriff's motion should more properly be denominated a motion for summary judgment. In contrast, because SORNA defines such crimes more broadly, offenders whose victims were minors are subject to a non-categorical approach that considers the underlying facts of the offense.
The sheriff states in a footnote to his motion to dismiss that Mr. Peters, who are sentenced to serve less than one year, have a fifteen-year obligation to register under SORNA. We would note that in Wilkerson we interpreted Toelke as imposing a lifetime registration obligation under state law regardless of the federal law's tiered distinctions, but questioned whether this accurately reflected the General Assembly's intent.
Regardless, we do not know on this record whether the sheriff was, in fact, referring to SORNA's fifteen-year reporting obligation or even when in Mr. Peters was instructed to register, i. Newton, Presiding Judge Victor C.