Conditions of Probation and Parole

Gaither v. Indiana Department of Correction (Ind. Ct. App. July 17, 2012).

In this case, the Court of Appeals held that although a statute prohibiting sex offenders from living within 1,000 feet of a school could not apply to sex offenders convicted before the statute was enacted, a trial court’s condition of probation prohibiting a sex offender from living within 1,000 feet of a school was valid.

The Court relied primarily on the principle that, apart from the statute prohibiting sex offenders from living within 1,000 feet of a school, a trial court has the authority to impose conditions on probation or parole. The Court determined that prohibiting a sex offender, in this case, a convicted child molester, from living near a school, is a permissible condition.

Another interesting aspect of this case is that the Defendant’s term of probation ended before the Court of Appeals reached its decision; therefore, the constitutionality of the restriction was moot as to the Defendant. The Court of Appeals decided, however, that it would still address the issue under an exception to the general rule that courts do not decide moot issues. The Court explained that the issue was of great public importance, would likely recur, and could evade appellate review, as probation terms would often expire before the Court of Appeals could issue an opinion on the issue. This aspect of the opinion is important for any practitioner appealing an issue that is moot as to the case at bar, but may affect other similarly-situated people.

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