The question for decision in this case is whether OCGA§ 42-1-13, which makes it a felony for a person required to register as a sex offender to “reside within 1,000 feet of any child care facility, school, or area where minors congregate,” is an unconstitutional ex post facto law when applied to an offender who was сonvicted before that Code section went into effect. The answer is “no.”
Tommie Morris Thompson pled guilty to child molestation on August 24, 1999. He was sentenced to serve a probated sentence of ten years. On June 4,2003, during the term of Thompson’s probation, OCGA § 42-1-13 became effective. That statute provides that a sеx offender commits a felony if he knowingly resides within 1,000 feet of an area where minors congregate. 1
Thompson has lived in the same house since the late 1980’s оr early 1990’s. 2 The house is located within 303 feet of a municipal community center.
After OCGA§ 42-1-13 was enacted, Thompson’s probation officer informed him that he was in viоlation of that Code section and that he would have to relocate. However, Thompson did not move. Thus, in September 2003, the State sought to revoke Thompson’s probation.
At the probation revocation hearing, Thompson asserted that OCGA § 42-1-13 was an unconstitutional ex post facto law. The lower court upheld the constitutionality
The ex post facto doctrine “ ‘forbids the application of any new punitive measure to a crime already consummated.’ ”
California Dept. of Corrections v. Morales,
To determine whether a penal statute is an ex post facto law, we employ a three-step anаlysis: First, we ask whether the law applies retrospectively. See
Lynce v. Mathis,
Is OCGA§ 42-1-13 retrospective? Apenal statute is retrospective if it alters the consequences for crimes committed prior to its enactment. Seе, e.g.,
Miller v. Florida,
In Hendricks, the Kansas legislature enacted a law which allowed for the involuntary civil commitment of sexually violent predаtors. When Hendricks, a convicted pedophile, was committed under the new act, he raised an ex post facto claim. The Supreme Court of Kansas found the act unconstitutional, but the United States Supreme Court reversed:
[T]he Act clearly does not have retroactive effect. Rather, the Act pеrmits involuntary confinement based upon a determination that the person currently both suffers from a “mental abnormality” or “personality disorder” and is likely to pose а future danger to the public. To the extent that past behavior is taken into account, it is used . . . solely for evidentiary purposes. Because the Act doеs not criminalize conduct legal before its enactment, nor deprive Hendricks of any defense that was available to him at the time of his crimes, the Act does not violate the Ex Post Facto Clause.
As in
Hendricks,
the new statute in this case, OCGA § 42-1-13, does not increase the punishment meted out to previously convicted sex offenders. It does not punish sex offenders retrospectively on the basis of their status. It simply declares that convicted sex offenders who
currently
reside within certain well-dеfined areas are guilty of a felony. If a convicted offender violates the statute, he can be prosecuted (or have his probation revokеd) for that
current
violation. See also
Hawker v. New York,
We note that our Court of Appeals correctly reached this conclusion on nearly identical facts in
Denson v. State of Ga.,
Denson can only be punished under OCGA § 42-1-13 if he prospectively chooses to violate the law by continuing to reside at his current аddress. The fact that Denson’s prior conviction subjects Denson to possible punishment under OCGA § 42-1-13 does not somehow convert the statute into an unconstitutional ex post facto law as applied to Denson.
Denson v. State of Ga., supra at 529.
Like Denson, Thompson is not being punished again because he is a convicted sex offender. He is being punished because he is currently violating OCGA § 42-1-13, and he refuses to move. Simply put, it is Thompson’s new crime which sparked Thompson’s probation revocation.
Judgment affirmed.
Notes
OCGA § 42-1-13 reads as follows:
(a) As used in this Code section, the term:
(1) “Area where minors congregate” shall include all public and private parks and recreation facilities, playgrounds, skating rinks, neighborhood centers, gymnasiums, and similar facilities providing programs or services directed towards persons under 18 years of age.
(2) “Child care facility” shall mean all public and private pre-kindergarten facilities, day-care centers, and preschool facilities.
(3) “School” shall mean all public and private kindergarten, elementary, and secondary schools.
(b) No individual required to register under Code Section 42-1-12 shall reside within 1,000 feet of any child care facility, school, or area where minоrs congregate. Such distance shall be determined by measuring from the outer boundary of the property on which the individual resides to the outer boundary of the property of the child care facility, school, or area where minors congregate at their closest points.
(c) Any person who knowingly fails to cоmply with the requirements of this Code section shall be guilty of a felony and shall be punished by imprisonment for not less than one nor more than three years.
(d) Nothing in this Code section shall create, either directly or indirectly, any civil cause of action against or result in criminal prosecution of any person, firm, corporation, partnership, trust, or association other than an individual required to he registered under Code Section 42-1-12.
The house is titled in the name of Thompson’s wife, Frаnces, who died in August 2001. In her will, Frances bequeathed all of her property to Thompson, if he survived her; otherwise to her children. At the time of the probation revocation hearing, the property had not been distributed.
The court stayed its ruling pending the outcome of this appeal.
In light of our holding, it is not necessary for us to determine whether the statute is punitive in intent or effect. See Weaver v. Graham, supra.