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Unpublished Opinion No. 2009-UP-369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).