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24937 - Thompson v. SCDPS

Shearouse Adv. Sh. No. 14
S.E. 2d

THE STATE OF SOUTH CAROLINA

In The Supreme Court



John Tyler Thompson, Respondent,

v.

South Carolina

Department of Public

Safety, Petitioner.



IT OF CERTIORARI TO THE COURT OF

APPEALS



Appeal From Greenville County

J. Ernest Kinard, Jr., Circuit Court Judge

Opinion No. 24937

Heard January 21, 1999 - Filed April 19, 1999



REVERSED



William L. Todd, Senior Assistant General Counsel,

and Frank L. Valenta, Jr., General Counsel, both of

South Carolina Department of Public Safety, of

Columbia, for petitioner.



Robert C. Childs, III, of Mitchell, Bouton, Duggan,

Yokel & Childs, of Greenville, for respondent.





FINNEY, C.J.: This is an action to construe the mandatory

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THOMPSON v. SCDPS





driver's license suspension portion of the felony driving under the influence

(felony DUI) statute, S.C. Code Ann. § 56-5-2945 (Supp. 1998). The Court of

Appeals held the statutory three year suspension period following "any term

of imprisonment" commenced when respondent was released from prison and

began serving his probationary sentence, and that where, as here, a

defendant has multiple felony DUI convictions arising out of a single

accident, the legislature intended that he receive a single three year

suspension. Thompson v. South Carolina Dep't of Public Safety, Op. No. 97

UP-552 (S.C. Ct. App. filed October 21, 1997). We granted certiorari, and

now reverse.1





Respondent was convicted of three counts of felony DUI causing

great bodily harm arising out of a single accident. He received two

consecutive Youthful Offender Act sentences not to exceed six years, and a

concurrent ten year sentence suspended on five years probation. The

probationary sentence was to begin after service of the Youthful Offender Act

sentences. On May 28, 1993, respondent was released from prison and

began serving his five year probationary sentence. The Department notified

him that his license would remain suspended until May 28, 2007: the five

year probationary period, followed by three consecutive three year statutory

suspensions.





Respondent then brought this declaratory judgment action to

construe the mandatory driver's license suspension portion of § 56-5-2945.

The circuit court upheld the Department's interpretation, but the Court of

Appeals reversed. We granted certiorari to decide two issues:



(1) Whether the Court of Appeals

erred in holding the phrase "term


1 In addition to this case, the Court of Appeals filed three other opinions

involving these issues on October 21, 1997: Caraway v. South Carolina Dep't

of Public Safety, Op. No. 97-UP-553 (S.C. Ct. App. filed October 21, 1997);

Davis v. South Carolina Dep't of Public Safety 328 S.C. 578, 493 S.E.2d 871

(Ct. App. 1997); and Williams v. South Carolina Dep't of Public Safety, Op.

No. 97-UP-554 (S.C. Ct. App. filed October 21, 1997). The Department

sought certiorari only in this case and Davis and we granted both petitions.

For the reasons given in this opinion, we now overrule Davis.

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THOMPSON v. SCDPS





of imprisonment" in § 56-5-2945

means only the actual period of

incarceration ?; and



(2) Whether the Court of Appeals

erred in holding the Department

could not impose consecutive three

year suspensions where multiple

felony DUI convictions arise out of

a single accident?





We find both issues were incorrectly decided by the Court of Appeals, and

therefore reverse.





A. "Term of Imprisonment"



The felony DUI statute provides in pertinent part:



The department shall suspend the

driver's license of any person who is

convicted or receives sentence upon a

plea of guilty or nolo contendre pursuant

to the [felony DUI1 section for a period

to include any term of imprisonment

plus three years.

S. C. Code Ann. § 56-5-2945 (emphasis added).





The phrase "Term of imprisonment" has a well-established meaning in South

Carolina criminal law. It is a type of criminal sentence, as distinguished

from a "fine", which is a monetary sanction. See, e.g., Jackson v. State,

S.C. 489 S.E.2d 915 (1997).







In sentencing, a trial judge may impose a term of years but

"provide for a suspension of a part of such imprisonment, and the placing of

the defendant on probation after serving a designated portion of the term of

imprisonment." Moore v. Patterson, 203 S.C. 90, 26 S.E.2d 319 (1943).

Probation, a suspension of the period of incarceration, is clearly part of a

criminal defendant's "term of imprisonment", as is actual incarceration,

parole, and the suspended portion of a sentence, e.g., Mims v. State, 273 S.C.

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THOMPSON v. SCDPS





740, 259 S.E.2d 602 (1979); Sanders v. MacDougall, 244 S.C. 160, 135 S.E.2d

836 (1964), or "supervised furlough." Crooks v. State, 326 S.C. 171, 485

S.E.2d 374 (1997).





"Term of imprisonment" as used in § 56-5-2945 means the non

fine part of criminal sentence, and includes suspended portions, probation or

parole periods, and supervised furlough. The Court of Appeals' decision

limiting the meaning of the phrase to the period of actual incarceration is

reversed.







B. Period of Suspension



The Court of Appeals held that respondent committed a single

offense resulting in harm to more than one person. It found the legislature

failed to anticipate this type of situation when it mandated license

suspensions, and construed the statute to allow only a single three year

suspension when a felony DUI defendant has only one accident, regardless of

the number of persons injured or killed. The Department argues this was

error. We agree.





First, it is simply incorrect to assert that respondent committed

only a single offense - he committed only one type of offense. More

importantly, the relevant event in the statute triggering the suspension is

'conviction', not offense or accident. Respondent has three convictions

"pursuant to" § 56-5-2945, and under the plain language of the statute faces

three three year suspensions.





Further, unlike the Court of Appeals, we find the legislature did

consider the possibility that a defendant could injure multiple victims

because the statute specifies that the driver's license suspension is

mandatory upon conviction or plea. Had the legislature intended for the

suspensions to be dependent upon something other than the number of

convictions, the legislature would have made the operative event the

'accident' or 'incident.' The statute is silent, however, as to the Department's

authority to run the suspensions consecutively.





In Bay v. South Carolina Highway Dep't, 266 S.C. 9, 221 S.E.2d

106 (1975), appellant was convicted of reckless homicide and leaving the

scene of an accident, both convictions arising out of a single accident. Each

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THOMPSON v. SCDPS





conviction carried a mandatory license suspension, and we held that the

Department was authorized to impose these suspensions consecutively,

noting: (1) nothing in the statute required the Department to make the

suspensions concurrent; (2) that the fact appellant's criminal sentences ran

concurrently was irrelevant to these civil suspensions; and (3) "There is

nothing to indicate that [Bay] is entitled to be rewarded by having the

periods of suspension run concurrently simply because he committed two

offenses within a very short period of each other." Id.





While Bay is not dispositive of the issue here, we adopt its

reasoning. First, the felony DUI statute does not require concurrent

suspensions. Second, we do not believe respondent is entitled to be rewarded

by concurrent suspension s simply because he fortuitously seriously injured

three people in one accident rather than injuring each in a separate accident.

It is within the Department's authority to run the mandatory license

suspensions under the felony DUI statute consecutively. The Court of

Appeals' holding to the contrary is reversed.





For these reasons, the decision of the Court of Appeals is



REVERSED.



TOAL, MOORE, WALLER, and BURNETT, JJ., concur.

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