INDIANAPOLIS (AP) _ The state cannot force convicted sex offenders who live near schools or other places frequented by children to move if they owned their homes before passage of a state law restricting their residency, the Indiana Court of Appeals has ruled.

The court said Tuesday that the 2006 law that prohibits convicted sex offenders from living within 1,000 feet of a school, public park or youth program center was unconstitutional in such cases.

The unanimous 10-page ruling upheld a Blackford County judge’s opinion, holding that the state law was an ex post facto law that punished sex offenders for behavior that was not criminal when it was committed — in this case, home ownership.

“The residency statute clearly increases the penalty applied to affected sex offenders by preventing those offenders from residing and taking full advantage of their ownership rights in property acquired prior to conviction and prior to the imposition of the statute,” Judge Paul D. Mathias wrote for the three-judge panel.

The ruling came in the case of a man had owned his home for about 10 years when he was convicted of a sex offense against a child in 1997. The man was charged in January 2007 with violating the state’s sex offender residency law. Blackford Superior Court Judge John Forcum dismissed the charge as unconstitutional, and the state appealed.

State attorneys argued that the man’s rights weren’t violated because he wasn’t charged with owning the home but with continuing to live there after the residency law took effect.

The appeals court disagreed.

“That punishment restricts an ownership interest in property that Pollard acquired before the statute came into effect; it is not just a potential penalty for continuing to reside within the exclusionary zone after the effective date of the statute,” Mathias wrote.

Posted 5/14/2008