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South Carolina Dep' of Probation2/24/2005
Heard February 8, 2005
REVERSED
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) 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
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