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 Appeal From Fairfield County Kenneth G. Goode, Circuit Court Judge Unpublished Opinion No. 2005-UP-137 Heard February 8, 2005 – Filed February 24, 2005 REVERSED John Benjamin Aplin, South Carolina Department of Probation, Parole & Pardon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).