Tolling Probation Limited to Violation of Probation Condition or Statutory Directive

On June 19, 2013, in State v. Miller, the South Carolina Supreme Court held that probation is not tolled while a person is involuntarily committed as a Sexually Violent Predator (SVP). In a unanimous opinion authored by Justice Donald Beatty, the Court clarified “that tolling probation must be premised on a violation of a condition of probation or a statutory directive.”

In this case, Miller plead guilty in 2001 for committing a lewd act on a minor child and criminal domestic violence of a high and aggravated nature. “For the lewd act conviction, Miller was sentenced to fifteen years in prison, suspended upon the service of ten years and five years probation.” When Miller completed the prison portion of this sentence, the State deemed him a Sexually Violent Predator (SVP) and civilly committed him to the Department of Mental Health (DMH) for treatment. The Probation Department issued a citation to toll Miller’s probation during the civil, SVP commitment.

Our Supreme Court rejected the Probation Department’s position “that Miller probationary period should be tolled because he is receiving mental health treatment in the SVP program and is, therefore, unavailable for community supervision.” The Court reasoned the SVP program “is administered under the supervision of the Department of Mental Health,” “is a civil, non-punitive treatment program,” and “is treated as a civil program for all other purposes.” Our Supreme Court saw “no existing basis for treating this type of civil commitment for persons with mental illness differently from other forms of civil commitment.”

The Court also pointed to its prior precedent holding that probation can be tolled only when required by statute or following a violation of probation, such as absconding supervision. A civil commitment simply does not meet these criteria.

State v. Miller rejects government overreaching by the Probation Department. This case also illustrates the importance of a criminal defense lawyer investigating, researching, and presenting legal objections, when appropriate, in a probation violation hearing.

Click this link to read the Court opinion in State v. Miller.

Editorial Note: State v. Miller is the second decision by the South Carolina Supreme Court in less than a month that limits, to some extent, government supervision of sex offenders. Click this link to read “Satellite Monitoring of Sex Offenders Requires Judicial Review.”