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Unpublished Opinion No.  2008-UP-604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).