By CHRIS BLANK
Associated Press
JEFFERSON CITY, Mo. (AP) -- Missouri's Supreme Court on Tuesday sided against three men previously convicted of a sex crime and facing a new criminal charge under a law making it illegal for them to be near certain parks.
The cases are the most recent to focus on a portion of the Missouri Constitution barring retrospective and ex post facto laws. The high court ruled last month the ban on retrospective laws does not apply to criminal statutes. A divided Missouri Supreme Court concluded Tuesday the parks restriction is a criminal law and the retrospective laws prohibition does not apply.
A 2009 Missouri law makes it illegal for those convicted of sexual offenses from knowingly being present or loitering within 500 feet of a public park with playground equipment or a public swimming pool. First-time violators can be charged with a felony and spend up to four years in prison, and repeat offenders could face up to seven years in prison.
In the cases before the high court, each defendant was convicted of a sex offense during the late 1990s. A circuit court dismissed the charge for being in a park against two of the men on the grounds that it was unconstitutionally retrospective when applied to them. The third was appealing his conviction. The high court upheld the conviction and remanded the two other cases.
Supreme Court Judge Zel Fischer wrote in the majority opinion that the park law is part of the criminal code, uses the language of a criminal provision and does not depend upon someone's registration as a sex offender. He said the law also carries a severe punishment.
"The General Assembly intended for this statute to punish felons, who had been convicted of committing specific, enumerated crimes, for engaging in future conduct that the General Assembly determined should be prohibited," Fischer wrote.
The Missouri Supreme Court has seven judges. Three agreed with Fischer's conclusions.
Judge George W. Draper III wrote a dissent joined by two other judges. Draper said he believes the statute against being near parks should be construed as a civil law and that he would find it retrospective as applied to the three sex offenders. Draper said the law is designed to protect the public from harm and derives from the requirement for sex offenders to register, which has been deemed nonpunitive and civil in nature.