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24891 - Farris v. State

Davis Adv. Sh. No. 4
S.E. 2d





THE STATE OF SOUTH CAROLINA

In The Supreme Court



Gary Russell Farris, Petitioner,

v.

State of South

Carolina, Respondent.



ON WRIT OF CERTIORARI



Appeal From York County

John C. Hayes, III, Judge



Opinion No. 24891

Submitted January 21, 1999 - Filed January 25, 1999



AFFIRMED



Deputy Chief Attorney Joseph L. Savitz, III, of

South Carolina Office of Appellate Defense, of

Columbia, for petitioner.



Attorney General Charles M. Condon, Chief Deputy

Attorney General John W. McIntosh, Assistant

Deputy Attorney General Teresa A. Knox, and

Assistant Attorney General Matthew M. McGuire,

of Columbia, for respondent.





MOORE, A.J.: Petitioner brought this action for post-

conviction relief (PCR) alleging his participation in an extended work

release program was unlawfully terminated. We granted a writ of



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FARRIS v. STATE





certiorari to review the denial of relief and now affirm.





FACTS





In 1989, petitioner pled guilty to second degree burglary and assault

and battery with intent to kill. He was sentenced to consecutive terms of

twenty and fifteen years respectively. No direct appeal was taken. In

1994, petitioner was admitted to a work release program pursuant to S.C.

Code Ann. ยง 24-13-610 (1989). In 1996, this statute was repealed by 1996

S.C. Act No. 441 and petitioner's participation in work release was

terminated.





ISSUE





Is petitioner's termination from a work release program for

which he was eligible when sentenced an ex post facto

violation?





DISCUSSION





To fall within the ex post facto prohibition, a law must be

retrospective and must disadvantage the offender by altering the definition

of criminal conduct or increasing the punishment for the crime. Lynce v.

Mathis, 519 U.S. 433, 117 S.Ct. 891, 137 L.Ed.2d 63 (1997); State v.

Matthews, 296 S.C. 379, 373 S.E.2d 587 (1988). The question here is

whether retrospective application of the Act repealing the work release

statute increased petitioner's punishment.





In California Dept. of Corrections v. Morales, 514 U.S. 499, 115 S.Ct.

1597, 131 L.Ed.2d 588 (1995), the United States Supreme Court found no

ex post facto violation where the challenged law produced no significant

risk of increasing the actual term of confinement. Other federal courts

have followed Morales and found no ex post facto violation in the

revocation of work release because there is no increase in the actual term

of confinement. Lee v. Governor of State of New York, 87 F.3d 55 (2d Cir.

1996); Dominique v. Weld, 73 F.3d 1156 (1st Cir. 1996). We adopt this

analysis and find no ex post facto violation in this case.1 Accordingly, the




1Unlike parole or supervised furlough, work release does not affect the

length of an offender's prison term. See Plyler v. Moore, 129 F.3d 728 (4th

Cir. 1997) (finding ex post facto violation in retrospective change in

supervised furlough as increase in length of incarceration); State v. Elmore,



p.38




FARRIS v. STATE





denial of PCR is





AFFIRMED.





FINNEY, C.J., TOAL and WALLER, JJ., concur. BURNETT, A.J., not participating.






305 S.C. 456, 409 S.E.2d 397 (1991) (retrospective reduction in work benefits

affecting parole eligibility is ex post facto violation).



p.39