State v. Mills

Justice PLEICONES.

I respectfully dissent. The majority holds that S.C.Code Ann. § 24-21-560 (Supp.2003) permits an inmate found to have violated the terms of his community supervision program (CSP) to serve an additional sentence,³ up to an amount equal to the period of incarceration imposed as part his original sentence. I would read the statute differently.

CSP “serves essentially the same function for persons convicted of ‘no parole offenses’ as parole does for other inmates.” Jackson v. State, 349 S.C. 62, 562 S.E.2d 475 (2002). As with parole, the Department of Probation, Parole, and Pardon Services (DPPPS) sets the initial length,⁴ terms, and conditions of CSP, and determines whether violations have occurred, and initiates a judicial revocation process. If the circuit court judge determines the inmate has willfully violated the terms of his CSP, then the judge has three options: 1) continue the CSP; 2) continue the CSP but alter the terms and conditions; or 3) revoke CSP and order the inmate reincarcerated. The statute limits the total amount of prison time an inmate can serve following CSP revocation(s) to the period of incarceration ordered by the sentencing judge. Read literally, then, I agree with the majority that the statute permits appellant to be reincarcerated for another six months, the “length of incarceration imposed for the original ‘no parole offense.’ ”

In my opinion, however, to read the statute literally is to render it unconstitutional. Compare In re Luckabaugh, 351 S.C. 122, 568 S.E.2d 338 (2002) (no double jeopardy or due process violation in involuntary commitment for sexually violent predators because commitment is not penal). An inmate’s original ‘no parole’ sentence ordinarily contains a period of incarceration plus a suspended portion. Section 24-21-560(D) limits the maximum period of reincarceration for CSP revocations to “an amount equal to the length of incarceration imposed for the original ‘no parole offense’ ”. The original term of incarceration does not include any portion of a suspended sentence.” In order to avoid any constitutional infirmity, I would read this language as putting an outside limit on incarceration of twice the period imposed by the trial judge. The outside limit on the total amount of time an inmate could be incarcerated and/or required to participate in the CSP program is the length of the original sentence, that is, the term of incarceration plus any period of suspension. For example, an individual sentenced to 20 years, suspended on service of seven years, would be subject to serving an additional seven years for CSP violations,⁵ but in no case could be held in prison or required to participate in a CSP program after the expiration of the 20 years. Here, appellant received a six-month sentence, no part of which was suspended. In my view, the maximum time he could constitutionally be subjected to incarceration and/or required to participate in the CSP program pursuant to this sentence was six months. That period having expired, I would hold the trial court erred in reincarcerating appellant.

3 . This is the term used in § 24-21-560; if the revocation judge is truly imposing a new sentence of up to one year, then the protections afforded all criminal defendants, including but not limited to the right to an indictment, counsel, and a jury, must be afforded her. None of these constitutional niceties were afforded appellant, or any of the other CSP violators who have come before the Court. Our obligation to construe statutes as constitutional where possible, e.g. Ward v. State, 343 S.C. 14, 538 S.E.2d 245 (2000), is a driving force behind my construction of § 24-21-560.

4 . The maximum period of CSP is two years.

5 . Of course, an inmate is subject to a maximum one year period of incarceration each time he is found to have willfully violated CSP, but each reincarceration is followed by another CSP until the program is successfully completed or until the term of the original sentence is met.