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2008-UP-604 - State v. Davis

THIS OPINION HAS NO PRECEDENTIAL VALUE, IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

The State, Appellant,

v.

Jenny Davis, Respondent,


Appeal from Laurens County
Honorable Frank R. Addy, Jr., Acting Circuit Court Judge


Unpublished Opinion No.  2008-UP-604
Submitted November 3, 2008 – Filed November 6, 2008


REVERSED


John Benjamin Aplin, of Columbia, for Appellant.

Kathrine H. Hudgins, of Columbia, for Respondent.

PER CURIAM:  This case involves the interpretation of the Sex Offender Accountability and Protection of Minors Act (the Act).  The State appeals the probation judge’s imposition of global positioning satellite monitoring (GPS) on Jenny Davis for the duration of her probation.  We reverse. [1]

FACTS

On December 2, 2004, Davis pleaded guilty to lewd act upon a child under sixteen.  The trial court sentenced Davis to six years’ imprisonment suspended upon the service of time served and three years’ probation. 

Davis subsequently committed a series of probation violations.  After a probation violation hearing, the probation judge revoked three months of Davis’s suspended sentence, continued her probation, and placed her on GPS monitoring during the term of her probation.  The State responded that because Davis pled guilty to lewd act on a child under sixteen, the Act requires monitoring for the duration Davis is required to remain on the sex offender registry.  The probation judge expressed concerns with lifetime GPS monitoring and ordered the monitoring only during the term of Davis’s probation.  This appeal followed.

LAW / ANALYSIS

The State argues the probation judge erred in imposing GPS monitoring on Davis for a period of time less than the duration Davis is required to remain on the sex offender registry.  We agree.     

Section 23-3-540(C) of the Act provides: “A person who is required to register pursuant to this article for . . . committing or attempting a lewd act upon a child under sixteen, pursuant to Section 16-15-140, and who violates a term of probation . . . must be ordered by the court or agency with jurisdiction to be monitored . . . with an active electronic monitoring device.”  S.C. Code Ann. § 23-3-540(C) (Supp. 2007).  “The person shall be monitored . . . for the duration of the time the person is required to remain on the sex offender registry. . . .”  S.C. Code Ann. § 23-3-540(H) (Supp. 2007) (emphasis added). 

“When a statute’s terms are clear and unambiguous on their face, there is no room for statutory construction and a court must apply the statute according to its literal meaning.”  Miller v. Aiken, 364 S.C. 303, 307, 613 S.E.2d 364, 366 (2005).  The word “shall” indicates the time period set forth in § 23-3-540(H) is mandatory.  See State v. Foster, 277 S.C. 211, 212, 284 S.E.2d 780, 780 (1981) (“Taken literally, the word ‘shall’ is mandatory.”).  Accordingly, the probation judge lacked discretion to shorten the duration of Davis’s electronic monitoring.[2] 

REVERSED.

HEARN, C.J., SHORT and KONDUROS, JJ., concur.


[1] We decide this case without oral argument pursuant to Rule 215, SCACR.

[2]  We note § 23-3-540(H) permits a person to petition for release from the monitoring requirements ten years from the date electronic monitoring is imposed.  S.C. Code Ann. § 23-3-540(H) (Supp. 2007).