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2012-UP-149 - State v. Kirkland

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.

William Kirkland, Respondent.


Appeal From Richland County
Edgar W. Dickson, Circuit Court Judge


Unpublished Opinion No.  2012-UP-149
Heard February 15, 2012 – Filed March 7, 2012 


REVERSED AND REMANDED


John Benjamin Aplin, of Columbia, for Appellant.

Appellate Defender Elizabeth Franklin-Best, of Columbia, for Respondent.

PER CURIAM:  This appeal arises out of Respondent William Kirkland's conviction for criminal sexual conduct (CSC) with a minor, first degree, for which he received a sentence of twenty-five years suspended upon service of one year in prison and five years of probation.  Kirkland served 85% of his one-year sentence and was released to the community supervision program (CSP).  Kirkland subsequently violated CSP and the court sentenced him to one year in prison.  After serving one year, Kirkland was released and began a five-year probation term.  Kirkland violated probation and was sentenced to five years in prison.  Kirkland did not appeal from either the imposition or revocation of regular probation.  After serving 85% of that five-year sentence, he was again released to CSP.  Kirkland came before the court for a second violation of CSP, which is the subject of the present appeal.  The circuit court found Kirkland did not violate CSP, terminated CSP and/or probation, and ordered Kirkland to check himself into a drug rehab facility under penalty of contempt.  The State appeals, arguing the court abused its discretionin discharging Kirkland from his entire sentence and in failing to dismiss Kirkland's argument as barred by the doctrines of res judicata and collateral estoppel.  We reverse and remand to the circuit court with instructions to reinstate Kirkland to CSP.

1.  As to the State's argument that the circuit court erred in discharging Kirkland from his entire sentence, we find the circuit court erred as a matter of law in discharging Kirkland from his sentence, CSP, and residual probation because Kirkland had served less than seven years of a twenty-five year sentence.  See State v. McGrier, 378 S.C. 320, 331, 663 S.E.2d 15, 21 (2008) (finding "revocations for successive CSP violations should not extend or exceed the term of incarceration that was originally ordered for the underlying offense"); S.C. Code Ann. § 24-21-560(D) (2007)[1] ("The maximum aggregate amount of time the 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 for the original 'no parole offense.'"); see also State v. Picklesimer, 388 S.C. 264, 271, 695 S.E.2d 845, 849 (2010) (Beatty, J., concurring) ("It is important to recognize that the sentence in McGrier was a no parole straight sentence of three years, not a split sentence.").  We also emphasize that reversal is appropriate because Kirkland did not appeal from the erroneous imposition of regular probation following Kirkland's service of a one-year term for his first violation of CSP.  See S.C. Dep't of Motor Vehicles v. McCarson, 391 S.C. 136, 145 n.9, 705 S.E.2d 425, 429 n.9 (2011) (noting an unappealed ruling, right or wrong, is the law of the case). 

2.  As to the State's arguments regarding the doctrines of res judicata and collateral estoppel, we find these arguments unpreserved for appellate review.  See State v. Jennings, 394 S.C. 473, 481, 716 S.E.2d 91, 95 (2011) ("For an issue to be properly preserved, it has to be raised to and ruled on by the trial court.").

REVERSED AND REMANDED.

PIEPER, KONDUROS, and GEATHERS, JJ., concur. 

[1] Section 24-21-560(D) was amended effective June 11, 2010.  See Act No. 237, 2010 S.C. Acts __.  The amended version is not applicable to Kirkland's CSP imposed on July 1, 2008.