OH- Prosecutors to appeal judge's ruling on sex offender

4-1-2008 Ohio:

TROY — Miami County prosecutors will appeal a judge's ruling that a Piqua sex offender, who has taken his fight against Ohio's residency restrictions to national television, is not covered by the state's 1,000 foot rule because he was convicted before the law was passed.

Common Pleas Judge Robert Lindeman this week dismissed a 2006 case against Edward Burge, 34, finding that an Ohio Supreme Court decision in February means the residency law cannot be applied to Burge. The 2003 law bans registered sex offenders from living within 1,000 feet of schools or school facilities.

When the 2006 case was filed, Burge was living at an East Main Street apartment prosecutors said was within 1,000 feet of a Piqua schools athletic field.

Burge was convicted in 2000 of attempted unlawful sexual conduct with a minor and labeled a sexually oriented offender.

The 2006 case was before Lindeman again after Ohio's 2nd District Court of Appeals last year sent the case back to the county for a hearing on whether the law retroactively imposes punishment in violation of the U.S. Constitution. A hearing on that issue was held in January and lawyers were in the process of filing written arguments when the judge issued a one-page decision dismissing the case.

Prosecutor Gary Nasal said he was surprised by the ruling.

Nasal agreed Burge was convicted before the residency law was passed in 2003 but said prosecutors will argue he did not live at the address in question prior to the law's passage. "The case said you lived there, and you committed the offense prior to (passage). That's our reasoning," he said.

Prosecutors will appeal to the 2nd District Court, and to the state Supreme Court, if necessary, to get a "clarification," he said.

Margie Slagle, a lawyer for Burge at the Ohio Justice and Policy Center in Cincinnati, said she was not surprised by Lindeman's ruling, but somewhat surprised by the plan to appeal. "The Ohio Supreme Court said it (the restriction) does not apply retroactively," she said.

Slagle said the court will be asked to allow Burge to move back with his wife and children in a Wood Street, Piqua, apartment he was ordered to leave earlier in 2006.

Prosecutors have filed actions against Burge five times claiming violation of the 1,000 foot rule. The filing involved in this week's decision was the third.

Burge said Tuesday he's eager to move back with his family. "It feels pretty good. It means that all of this exposure wasn't in vain," he said.

Burge appeared last year on a CBS News segment on sex offender residency restrictions and on "The Montel Williams Show." ..more.. by Nancy Bowman

See earlier story: Sex offenders' lawyers say law requiring moves is unconstitutional