ANSAR F. MOHAMMED, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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A sex offender appealed a probation condition requiring him to reside more than 1,000 feet from a child care facility. Although the facility was established after he purchased his home but before his conviction and sentencing, the court held that the statutory exception protecting pre-existing residences applies only when the residence already complied with the distance requirement at the time of sentencing, not when a facility later moved into violation proximity.
The court affirmed that the statutory exception in section 948.30(1)(b), Florida Statutes, which protects probationers from forced relocation when a restricted facility is subsequently established near their existing residence, does not apply because the residence must meet the statutory requirements at the time the probationer becomes subject to the statute (sentencing), not at the time of purchase.
[1] A probationer subject to a statute prohibiting residence within 1000 feet of a child care facility may not remain in their residence if the child care facility was alread…
[2] The rule of lenity does not apply to a statute when its meaning is clear and unambiguous.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“A probationer ... who is subject to this paragraph may not be forced to relocate and does not violate his or her probation ... if not be forced to relocate he or she is living in a residence that meets the requirements of this paragraph and a school, child care facility, park, playground, or other place where children regularly congregate is subsequently established within 1,000 feet of his or her residence.”
The statutory exception that appellant relied upon, showing the protection applies only to residences already meeting requirements when a facility is subsequently established.
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Join FLexlaw to unlock all legal intelligenceAppellant purchased his home in February 2008. A child care facility was established within 1,000 feet of his residence in July 2009. Appellant commit…
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After Appellant pled no contest to certain sex’ offenses involving a minor, the court placed him on sex offender probation with a condition that he not reside within 1000 feet of any place where children regularly congregate. Appellant challenges an order denying his request to remain at his residence, which is within 1000 feet of a child care facility, while serving sex offender probation. Appellant argues that, because the child care facility moved within 1000 feet of his home after he purchased it but before he committed the crime for which he was placed on probation, he should have been permitted to remain in *726his home, notwithstanding this mandatory probation condition. He argues that the applicable statute expressly permits him to remain in the home, or that the applicable statute is ambiguous on this point and should be construed in his favor. Concluding that the statute is not ambiguous, and does not permit Appellant to remain in his residence, we affirm.
Pursuant to a plea agreement, Appellant pled no contest to sixteen counts of unlawful possession of materials depicting sexual performance by a child and the State nolle prosequied the remaining thirty-one charges. The offenses occurred in August and September 2012. On August 8, 2013, the court sentenced him to an aggregate of twenty years of sex offender probation (a downward departure sentence). The court imposed the standard sex offender conditions, including the condition that “[i]f the victim was under the age of 18, a prohibition on living within 1,000 feet of a school, day care center, park, playground or other places where children regularly congregate, as prescribed by the court.” At sentencing, Appellant and his attorney signed a list containing all the special conditions for sex offender probation and filed it with the court.
Appellant later filed a motion to “clarify” his sentence. In it, he explained that he had purchased and had been living in his home since February 2008. He represented that the child care facility, which is within 1000 feet of his home, had not been established until July 2009. He asked the court to clarify its probation order to allow him to remain living in his home. After a hearing, the lower court denied relief.
The dispositive issue on appeal turns on the construction of section 948.30(1), Florida Statutes (2013), which, in pertinent part, provides:
948.30 Additional terms and conditions of probation or community control for certain sex offenses ...
(1) Effective for probationers ... whose crime was committed on or after October 1, 1995, and who are placed' under supervision for violation of ... s. 827.071 ..., the court must impose the following conditions in addition to all other standard and special conditions imposed:
(b) If the victim was under the age of 18, a prohibition on living within 1,000 feet of a school, child care facility, park, playground, or other place where children regularly congregate, as prescribed by the court.... A probationer ... who is subject to this paragraph may not be forced to relocate and does not violate his or her probation ... if not be forced to relocate he or she is living in a residence that meets the requirements of this paragraph and a school, child care facility, park, playground, or other place where children regularly congregate is subsequently established within 1,000 feet of his or her residence.
§ 948.30(1), Fla. Stat. (2013) (emphasis added).
Appellant contends that the last sentence of section 948.30(l)(b) authorizes him to remain in his residence or, at the very least, it is ambiguous, necessitating that we employ the rule of lenity in construing the statute. We disagree. The statute only applies to a “probationer ... subject to this paragraph.” Appellant did not become a probationer subject to the statute until after he was convicted and placed on probation in 2013. At that time, the child care facility was already in place and within 1000 feet of his residence. Thus, at the time Appellant became a probationer subject to the statute, his residence did not *727“meet[ ] the requirements of [section 948.30(1) ].” Therefore, the last sentence of section 948.30(l)(b) does not apply to his situation and the trial court did not err in denying his request to remain in his home.
AFFIRMED.
TORPY, C.J., ORFINGER and EVANDER, JJ., concur.