SC Department of Probation

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

South Carolina Department of Probation, Parole and Pardon Services/In
Re: The State,        Appellant,

v.

Elijah Byrd,       
Respondent.

Appeal From Fairfield County

Kenneth G. Goode, Circuit Court Judge

Unpublished Opinion No. 2005-UP-137

Heard February 8, 2005 – Filed February 24, 2005

REVERSED

John Benjamin Aplin, South Carolina Department of Probation,
Parole & Pardon Services, of Columbia, for Appellant.

Assistant Appellate Defender Tara S. Taggart,
of Columbia, for Respondent.

PER CURIAM:  The Department of Probation,
Parole and Pardon (the Department) appeals the trial court’s probationary sentence
ordering Elijah Byrd to pay restitution directly to the victim’s attorney rather
than to the Department as statutorily required.  We reverse.

FACTUAL/PROCEDURAL BACKGROUND

Byrd was indicted for felony driving under the
influence causing great bodily injury.  On January 21, 2004, Byrd pled guilty
as charged pursuant to a plea agreement that Byrd receive a time served sentence
with a suspended probationary sentence and order for restitution.  The trial
judge sentenced Byrd to fifteen years suspended upon the service of time served
and five years probation.  He ordered as a special condition of probation that
Byrd pay $10,000 restitution directly to the victim’s attorney in equal monthly
installments. 

On January 28, 2004, the Department filed a motion
to reconsider the sentencing order, challenging the trial court’s authority
to order restitution payments directly to the victim’s attorney on the basis
that the Department is statutorily mandated to collect restitution from all
defendants on probation.  The Department requested the trial court grant the
motion to reconsider and order defendant to pay restitution and the collection
fee to the Department.  The trial court summarily denied the motion.  The Department
appeals.  

LAW/ANALYSIS

The Department argues the trial court
erred in ordering Byrd to pay restitution directly to the victim’s attorney
rather than to the Department while Byrd was under probationary supervision. 
It contends, pursuant to South Carolina Code Ann. § 24-21-490 (Supp. 2004)
[1] the trial court lacked authority to waive either the Department’s duty
to collect and distribute restitution, or the twenty percent collection fee
on restitution payments paid through the Department.  We agree.

The case of S.C. Dep’t. of Prob., Parole
and Pardon Servs.:  In re State v. Reynolds, 343 S.C. 465, 540 S.E.2d 480
(Ct. App. 2000) is directly on point.  In Reynolds, the Department argued
the trial court’s sentence requiring the defendant to pay restitution directly
to the victim violated § 24-21-490(A), and the sentence had the effect of waiving
the twenty percent collection fee the Department is required to assess on restitution
payments.  Id. at 468, 540 S.E.2d at 482.  This court agreed, holding
as follows:

We conclude section 24-21-490(A) is unambiguous and conveys
a clear and definite meaning. The legislature stated its intention that the
Department collect restitution owed by all offenders under probationary
and intensive probationary supervision, and then distribute that money to the
victims.

We agree with the Department that the circuit court does
not have the authority to circumvent the legislature’s intent for the Department
to manage the payment of restitution from individuals under its supervision. 
Once an individual is placed on probation, any restitution owed by that individual
must be collected and distributed by the Department.

Id.  at 469, 540 S.E.2d at 482-83 (emphasis
in original).  We also found “the trial court does not have the authority to
waive the collection fee on restitution payments paid to the Department.”  Id. 
at 469, 540 S.E.2d at 483.  Based upon Reynolds, we agree with the Department
that the trial judge exceeded his authority in ordering Byrd to pay restitution
directly to the victim’s attorney.

Byrd maintains that this court should
not consider the issue because it is not properly preserved for appellate review. 
We disagree.

Byrd argues the State did not contemporaneously
object to the trial judge’s sentence, including the provision that restitution
be paid directly to the victim’s attorney, and the solicitor in fact agreed
that the restitution be paid in this manner.  It is clear, however, the Department
raised the issue at the first opportunity it had, filing the motion for reconsideration
before the trial court within seven days of the court’s sentencing order.
[2]  Because the Department raised the issue when it first learned of the
improper condition of probation, we find the issue is preserved for our review. 
See First Union Nat’l Bank of S.C. v. Soden, 333 S.C. 554, 568,
511 S.E.2d 372, 379 (Ct. App. 1998) (noting where an appellant learns for the
first time when the appellant receives the order that the respondent would be
granted certain relief, the appellant must move to alter or amend the judgment
to preserve the issue). [3]

For the foregoing reasons, the sentencing order
is

REVERSED.

GOOLSBY, HUFF and STILWELL, JJ., concur.

[1] This section provides in part as follows:

(A) The Department of Probation,
Parole and Pardon Services shall collect and distribute restitution on a monthly
basis from all offenders under probationary and intensive probationary supervision.

(B) Notwithstanding Section
14-17-725, the department shall assess a collection fee of twenty percent
of each restitution program and deposit this collection fee into a separate
account.         

[2] Byrd argues the motion to reconsider was improperly before the court
because the Department failed to file a motion to intervene.  Byrd raises
this intervention argument only in conjunction with his assertion that the
issue is not preserved for appellate review.  He does not raise a separate
issue that the Department was required to file certain documents to properly
intervene, nor does he argue the appeal should be dismissed because the Department
failed to properly intervene.  Further, he cites no applicable law and makes
only a cursory argument.  See Reynolds, 343 S.C. at 468 n.1,
540 S.E.2d at 482 n.1 (wherein this court declined to consider Reynolds’ argument
that the Department did not have the right to appeal the order or sentence
because the Department failed to file a motion to intervene, where Reynolds
failed to cite authority and her argument was so conclusory as to amount to
an abandonment of the issue on appeal.)

[3] But see State v. Cox, 328 S.C. 371, 492 S.E.2d
399 (Ct. App. 1997) (wherein this court affirmed sentences which included
a one-year sentence under house arrest with electronic monitoring where Department
first raised an objection to the sentence in a motion for reconsideration,
finding no objection was made to the sentences at the time of their imposition).