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Unpublished Opinion No.  2012-UP-149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.