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2011-UP-442 - State v. Zoller

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

The State, Appellant,

v.

Joseph Leon Zoller, Respondent.


Appeal From Lancaster County
Brooks P. Goldsmith, Circuit Court Judge


Unpublished Opinion No. 2011-UP-442
Submitted October 1, 2011 – Filed October 11, 2011


AFFIRMED


J. Benjamin Aplin, of Columbia, for Appellant.

Appellate Defender Kathrine Hudgins, of Columbia, for Respondent.

PER CURIAM: Joseph Leon Zoller pled guilty to second-degree criminal sexual conduct with a minor (CSC) and was sentenced to five years' imprisonment in May 1996.  After serving eighty-five percent of his sentence, Zoller was released from prison and began a community supervision program (CSP).  Subsequently, the circuit court revoked Zoller's CSP several times and ordered a period of incarceration for each revocation.  On March 17, 2008, the circuit court again revoked Zoller's CSP, sentenced him to one year of imprisonment, and imposed lifetime electronic monitoring.  On March 4, 2009, the circuit court issued an order releasing Zoller from imprisonment pursuant to State v. McGrier[1] because Zoller had served an additional 1,313 days' imprisonment beyond his original five-year sentence.  The circuit court's order also vacated the previous circuit court order imposing lifetime electronic monitoring and dismissed the arrest warrant for violating the terms and conditions of his electronic monitoring.  The State appeals this order.[2]  We affirm.[3]

CSC is considered a "no parole" offense, and therefore, a person convicted must serve eighty-five percent of the "actual term of imprisonment imposed" before becoming eligible for CSP.  S.C. Code Ann. § 24-13-150(A) (Supp. 2010).  In addition, a person convicted of a "no parole" offense must complete CSP upon release from imprisonment.  S.C. Code Ann. § 24-21-560(A) (2007).  CSP can last no longer than two continuous years.  § 24-21-560(B) (Supp. 2010). "A prisoner who is sentenced for successive revocations of the community supervision program may be required to serve terms of incarceration for successive revocations . . . and may be required to serve additional periods of community supervision for successive revocations . . . ."  § 24-21-560(D) (Supp. 2010).  "The maximum aggregate amount of time a prisoner may be required to serve when sentenced for successive revocations may not exceed an amount of time equal to the length of incarceration imposed limited by the amount of time remaining on the original 'no parole offense.'"  Id.  "The prisoner must not be incarcerated for a period longer than the original sentence."  Id. 

We find the circuit court properly vacated the previous circuit court order imposing lifetime electronic monitoring.  Zoller was no longer subject to CSP or any of its direct or collateral consequences at the time of the March 2008 hearing because Zoller had served the entirety of his five-year sentence by October 2003.  Here, Zoller served the requisite eighty-five percent of his five-year sentence from May 8, 1996, to May 12, 2000.  During this initial incarceration, Zoller served 1,678 days of his 1,825-day sentence.  Upon his release from jail in 2000, Zoller only had 147 days remaining on his sentence.  On June 2, 2003, the circuit court revoked Zoller's CSP and sentenced him to one year of imprisonment.  Zoller was released on April 30, 2004, after serving 335 days, which was 188 days in excess of his five-year sentence.  See State v. McGrier, 378 S.C. 320, 331-32, 663 S.E.2d 15, 21 (2008) (holding section 24-21-560(D) limits the amount of time a prisoner can be incarcerated after a CSP revocation to the length of the remaining balance of the sentence for the "no parole offense" and noting the sentence for a CSP revocation cannot exceed the "aggregate period of time that extended beyond the unsuspended portion of the original sentence").  Because Zoller was no longer subject to CSP or any of its direct or collateral consequences at the time of the March 2008 hearing, Zoller could not be subject electronic monitoring or any violations arising out of the improper imposition of electronic monitoring. Thus, the arrest warrant was also invalid. 

AFFIRMED.

HUFF, PIEPER, and LOCKEMY, JJ., concur.


[1] 378 S.C. 320, 663 S.E.2d 15 (2008).

[2] We find the State's argument concerning whether McGrier applies to collateral consequences of CSP revocations is immaterial to this case.  The supreme court did not draw any distinction between direct or collateral consequences of CSP violations in McGrier. Furthermore, the issue of whether the rule in McGrier applies to collateral consequences is irrelevant here.  No direct or collateral consequences of CSP revocations could apply to Zoller because Zoller was no longer subject to CSP at the time of the March 2008 hearing.

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