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No-Contact Condition of Probation Found to be Void for Vagueness

April 21, 2022

The Court of Appeals found that the no-contact provision in a sex offender's sentence was unlawful and vacated that portion of his sentence.

In Bryant v. State, a convicted sex offender appealed his sentence arguing that one of the special conditions of his probation was unlawful. The Court agreed, finding that the probation condition was so overbroad that there was no meaningful way for the defendant to comply with it.

Probation Condition at Issue

The defendant entered a guilty plea to the offense of enticing a child for indecent purposes. He received a prison sentence followed by a term of probation. As part of his sentence, the defendant would be subject to the sex offender special conditions of probation which included a condition that prohibited any contact with minors. Specifically, this condition was worded as follows:

You shall have no contact, whether directly in person or indirectly, through any means of communication, with any child under the age of eighteen (18), nor with any person unable to give consent because of mental or emotional limitations. Neither shall you attempt contact with the aforementioned except under circumstances approved in advance and in writing by the Court. If you have incidental contact with children, you will be civil and courteous to the child and immediately remove yourself from the situation. You will discuss the contact at your next meeting with your Probation Officer.

Was This Condition Void for Being Too Overbroad?

At the outset, the Court of Appeals noted that it has previously held that similar no-contact provisions were overbroad when the condition failed to adequately notify the defendant of the places and people he needed to avoid or was so broad that it basically prohibited the defendant from going almost anywhere.

The Court found that the language of this special condition was similarly overbroad in that it could be interpreted in a way that would prohibit the defendant from going to any place in which it was possible for a minor to be present – including most stores and restaurants. Not only would people under 18 be present at these locations, but they also may be employees there.

The Court held that it would be virtually impossible for the defendant to strictly comply with this condition unless he literally avoided all public places. As such, the Court reiterated its rulings from prior cases that these universal conditions that prohibit contact with a particular segment of the population without limitation will not be valid under Georgia law.

Was the Defendant’s Challenge to his Sentence Timely?

This was not the first time the defendant’s case was up on appeal since his sentence had been imposed. Shortly following his sentencing, he filed a number of motions to either withdraw his guilty plea or vacate his sentence. The trial court denied those motions and the case went up to the Court of Appeals.

The appeal was then dismissed by the Court of Appeals finding that it lacked jurisdiction over the appeal since the defendant’s notice of appeal was not timely filed. He then filed a motion for an out-of-time appeal that was denied by the trial court and he appealed again to the Court of Appeals. The Court dismissed the appeal once again finding that its previous dismissal of the appeal prohibited the granting of an out-of-time-appeal.

Following the dismissal of his second appeal, the defendant then filed a motion in the trial court alleging that his sentence was void as a result of this unlawful special condition. This motion was denied by the trial court and he appealed for a third time to the Court of Appeals.

This time, the Court held that it did have jurisdiction to hear the defendant’s appeal despite the fact that this motion was filed close to two years after the entry of his guilty plea.

While a defendant must generally file any motion to modify or vacate his sentence within one year of sentencing, a motion to vacate a void sentence can actually be filed at any time. So, if a sentence imposes a punishment that the law prohibits, the sentence is void and can be challenged by the defendant regardless of how much time has passed. This is true whether the defendant is convicted at trial or enters a guilty plea.

The Court found that since this argument that the sentence was void was being raised by the defendant for the first time, the previous dismissals of his appeals did not preclude his appeal here.

Remand for Resentencing

As a result of the Court’s finding that the no-contact provision was unlawful, the case was remanded back to the trial court for resentencing with respect to this particular condition. So, the rest of the defendant’s sentence remained intact, but the no-contact provision was vacated.

On remand, the trial court may re-word this condition in a way that will adequately put the defendant on notice and not unreasonably restrict his ability to go to public places. One easy way to do that is just prohibit the defendant from having “unsupervised” contact with minors – thus, any incidental contact with minors where another adult is present would not be in violation of the sentence.

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