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2009-UP-369 - State v. Smith

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.

Travis Dale Smith, Respondent.


Appeal From Greenville County
 Charles B. Simmons, Jr., Circuit Court Judge


Unpublished Opinion No. 2009-UP-369
Submitted June 1, 2009 – Filed June 25, 2009   


REVERSED


John Benjamin Aplin, of Columbia, for Appellant.

Appellate Defender LaNelle C. DuRant, of Columbia, for Respondent.

PER CURIAM:  In 2004, Travis Dale Smith pled guilty to committing a lewd act on a minor.  He was sentenced to eight years' imprisonment, suspended upon the service of five years' probation, and received credit for 374 days served.  According to the sentencing sheet, Smith was required to refrain from contacting the victim and to "follow special conditions for sex offenders."  On September 16, 2004, Smith endorsed a document entitled "Special Conditions for Sex Offenders," which prohibited him from initiating, establishing, or maintaining "contact with any male or female child under the age of 18, except a member of [his] immediate household family."

On September 18, 2007, Smith's probation agent found a seventeen-year-old girl hiding in Smith's bed and recommended Smith's probation be revoked.  The circuit court revoked the balance of Smith's probation based upon Smith's failure to pay some supervision fees, failure to follow the advice and instructions of his probation agent or to comply with conditions of his probation, and failure to abide by the special conditions.  The circuit court specifically refused to order global positioning satellite (GPS) monitoring. 

The State appeals, arguing the circuit court abused its discretion by refusing to order GPS monitoring as well.  We agree.[1] 

A decision to revoke probation generally rests within the circuit court's discretion; however, an appellate court should reverse when that decision is based on an error of law or lacks supporting evidence.  State v. Crouch, 355 S.C. 355, 359, 585 S.E.2d 288, 291 (2003).  "A person who is required to register [as a sex offender] 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. 2008) (emphasis added).  "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. 2008) (emphasis added).[2]  "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."). 

The circuit court erred in refusing to impose GPS monitoring because this decision clearly was not within its discretion.  GPS monitoring following a probation violation is discretionary in some cases.  However, GPS monitoring following a probation violation is mandatory in the case of a person classified as a sex offender for committing a lewd act on a child under sixteen.  Smith violated not only the special condition restricting his contact with minors, but also conditions requiring him to pay supervision fees, to follow the advice and instructions of his probation agent, and to comply with conditions of his probation.  Each of these violations individually mandated revocation of his remaining probation and imposition of GPS monitoring.  Accordingly, to the extent it declines to order Smith to submit to GPS monitoring, the order of the circuit court is

REVERSED.

HEANR, C.J., THOMAS and KONDUROS, JJ., concur.


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

[2] However, a person may 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. 2008).