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State v. Hackett1/24/2005
he was sent back to prison. Accordingly, he asked that his warrant and citation be dismissed for lack of subject matter jurisdiction. The trial court found Hackett's period of probation was properly tolled in both instances and the court therefore had subject matter jurisdiction. Following the taking of testimony on the merits, the trial court found Hackett to be in violation of his probation and revoked Hackett's probation in full. This appeal follows.
LAW/ANALYSIS
Hackett argues the trial court erred in revoking his November 1993 probation in December 2002 because the probationary period could not exceed five years. He asserts S.C. Code Ann. § 24-21-440 does not allow a period of probation to exceed five years, and probation may not be extended absent a partial revocation. Accordingly, Hackett maintains his probation could not be extended beyond November 8, 1998, and the February 5, 1999 order tolling his probation was therefore invalid. We disagree.
South Carolina Code Ann. § 24-21-440 (Supp. 2003) provides as follows: "The period of probation or suspension of sentence shall not exceed a period of five years and shall be determined by the judge of the court and may be continued or extended within the above limit." A trial court's order extending probation beyond the five-year period authorized by statute is an illegal sentence requiring reversal. State v. Sumpter, 334 S.C. 369, 371, 513 S.E.2d 373, 374 (Ct. App. 1999).
"The cardinal rule of statutory construction is to ascertain and effectuate the intent of the legislature." Elmore v. Ramos, 327 S.C. 507, 510, 489 S.E.2d 663, 665 (Ct. App. 1997). "In construing a statute, its words must be given their plain and ordinary meaning without resort to subtle or forced construction to limit or expand the statute's operation." Adkins v. ComcarIndus., Inc., 323 S.C. 409, 411, 475 S.E.2d 762, 763 (1996). "If a statute's language is plain and unambiguous, and conveys a clear and definite meaning, there is no occasion for employing rules of statutory interpretation and the court has no right to look for or impose another meaning." State v. Smith, 330 S.C. 237, 240, 498 S.E.2d 648, 650 (Ct. App. 1998). "Where a statute is complete, plain, and unambiguous, legislative intent must be determined from the language of the statute itself." Id. On the other hand, " courts will reject the plain and ordinary meaning of statutory language when to accept it would lead to a result so absurd that it could not possibly have been intended by Legislature, or would defeat plain legislative intention; if possible we will construe a statute so as to escape an absurd result and carry the legislative intention into effect." State v. Gordon, 356 S.C. 143, 152-53, 588 S.E.2d 105, 110 (2003).
Construing the plain and ordinary meaning of the words of §24-21-440, we find no prohibition for the tolling of a probationary sentence under these circumstances. In the instant case, the trial court did not attempt to continue or extend probation beyond the five-year limit imposed by §24-21-440. Rather, the court tolled the probationary period from running during the time Hackett absconded from supervision. Thus, § 24-21-440 does not explicitly prohibit the tolling of time during which a probationary term runs.
Further, even if the "plain and ordinary meaning of the statute" does not specifically authorize tolling of probation, we find tolling is proper to reflect the legislative intent. "The primary concern in interpreting a statute is to determine the intent of the legislature if it reasonably can be discovered in the language when construed in the light of its intended purpose." Clemson Univ. v. Speth, 344 S.C. 310, 312-13, 543 S.E.2
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