Davis v. South Carolina Dept. of Public Safety

• Decision Date: 03 September 1998
• Docket Number: No. 2740,2740
• Parties: Jackie Franklin DAVIS, Respondent, v. SOUTH CAROLINA DEPARTMENT OF PUBLIC SAFETY, Appellant.
• Court: South Carolina Court of Appeals

Page 871

493 S.E.2d 871

328 S.C. 578

Jackie Franklin DAVIS, Respondent, v. SOUTH CAROLINA DEPARTMENT OF PUBLIC SAFETY, Appellant.

No. 2740.

Court of Appeals of South Carolina.

Submitted Sept. 8, 1997.

Decided Oct. 21, 1997.

Rehearing Denied Dec. 17, 1997.

Certiorari Granted Sept. 3, 1998.

Frank L. Valenta, Jr., General Counsel, and Patrick M. Teague, Associate General Counsel, both of the South Carolina Department of Public Safety, Columbia, for appellant.

William H. Nicholson, III, of Nicholson & Anderson, Greenwood, for respondent.

STILWELL, Judge:

The South Carolina Department of Public Safety (Department) appeals from a circuit court order which determined that the plain meaning of the phrase "term of imprisonment" as used in the felony DUI statute ¹ denotes "actual duration of the offender's incarceration." ² Department also appeals the trial court's ruling that multiple convictions arising out of a single violation (such as when more than one individual is harmed by the conduct) of the felony DUI statute result in only one three-year suspension of Davis's driver's license. We affirm. ³

FACTS

On January 8, 1991, Davis pled guilty to two counts of felony DUI. Both of these counts, on separate indictments, involved one accident, which caused injury to two separate people. On each indictment, Davis was sentenced to five years, suspended on service of two years, a $5000 fine, and five years probation. The fine and sentence on both indictments were concurrent.

Davis completed his sentence of imprisonment on January 16, 1992, ⁴ and began probation, with an expiration date of January 15, 1997. Davis sought an order compelling Department to lift its suspension following his service of imprisonment and the subsequent three-year suspension. Department, however, contended the three years did not start running until the end of Davis's five-year sentence even though it was suspended. Furthermore, Department suspended the license for two consecutive periods of three years for each indictment for a total of an eleven-year suspension. The trial court determined that the three-year period of suspension ended on January 15, 1995, three years after Davis was released from imprisonment. The court determined that Davis's driver's license should have been suspended for a maximum period of three years over the term of imprisonment because, even though two people were injured, Davis committed only one driving offense.

LAW/DISCUSSION

I.

Department contends that the legislative intent under the felony DUI statute was to suspend the driver's license of anyone convicted under the statute for any term of imprisonment which means any prison sentence given. We disagree.

The statutory language at issue is as follows:

The department shall suspend the driver's license of any person who is convicted or who receives sentence upon a plea of guilty or nolo contendere pursuant to this section for a period to include any term of imprisonment plus three years.

S.C.Code Ann. § 56-5-2945(B) (Supp.1996) (emphasis added).

The construction of a statute by the agency charged with its administration will be accorded most respectful consideration and will not be overruled absent compelling reasons. Home Health Serv., Inc. v. South Carolina Tax Comm'n, 312 S.C. 324, 440 S.E.2d 375 (1994); Jasper County Tax Assessor v. Westvaco Corp., 305 S.C. 346, 409 S.E.2d 333 (1991). Such compelling reasons exist, however, if the agency's construction of the statute is clearly erroneous. Monroe v. Livingston, 251 S.C. 214, 217, 161 S.E.2d 243, 244 (1968) (finding an agency's consistent construction of a statute "affords no basis for the perpetuation of a patently erroneous application of the statute").

We believe Department's interpretation of "term of imprisonment" as including a suspended sentence, probation, or parole is clearly erroneous.

When statutory terms are clear and unambiguous, there is no room for construction and the terms must be applied according to their literal meaning. Carolina Power & Light Co. v. City of Bennettsville, 314 S.C. 137, 442 S.E.2d 177 (1994). We believe the phrase "term of imprisonment" clearly and unambiguously refers to physical incarceration and, therefore, the subsequent three-year suspension should begin when a defendant is released from incarceration in a correctional institution or similar facility. See State v. Wickenhauser, 309 S.C. 377, 423 S.E.2d 344 (1992) (term "imprisonment" as used in S.C.Code Ann. § 56-5-2940(4) refers only to actual incarceration and not to any probationary period). Other jurisdictions have likewise determined that "term of imprisonment" as used in various statutes refers to actual physical confinement in jail. E.g., State ex rel. Otterstetter v. McManus, 309 Minn. 68, 243 N.W.2d 730 (1976) ("term of imprisonment" as used in Interstate Agreement on Detainers refers to physical confinement of the prisoner and not parole); Commonwealth v. Kriston, 527 Pa. 90, 588 A.2d 898, 899 (1991) (holding "plain and ordinary meaning of imprisonment is confinement in a correctional or similar rehabilitative institution," not electronic home monitoring) (emphasis in original). But cf. State v. Rosado, 131 N.J. 423, 621 A.2d 12, 14 (1993) ("[P]arole is the legal equivalent of imprisonment--a proposition that we adopt for purposes of computing credit for a 'term of imprisonment' in the context of this case.").

Because the phrase "term of imprisonment" is clear and unambiguous, discerning legislative intent is not necessary. See Timmons v. South Carolina Tricentennial Comm'n, 254 S.C. 378, 401, 175 S.E.2d 805, 817 (1970) ("If a statute is clear and explicit in its language, then there is no need to resort to statutory interpretation or legislative intent to determine its meaning."). In any event, we do not believe the legislature intended the phrase to refer to anything other than actual incarceration. In at least one other provision, the legislature's intention was clearly to the contrary. Cf. S.C.Code Ann. § 56-5-750(D) (Supp.1996) (If a driver fails to stop when signaled by law enforcement vehicle Department must revoke the driver's license for a period to include "any term of imprisonment, suspended sentence, parole, or probation, plus three years.") (emphasis added). Had the legislature intended a different result here, the language employed in § 56-5-2945 would have been similar, if not identical, to the language employed in § 56-5-750(D).

Department's reliance on Attorney General Opinion 92-56 and several cases cited therein is misplaced. Based in part on the cases State v. Germany, 216 S.C. 182, 57 S.E.2d 165 (1949); Picklesimer v. State, 254 S.C. 596, 176 S.E.2d 536 (1970); and Mims v. State, 273 S.C. 740, 259 S.E.2d 602 (1979), the Attorney General's Office advised Department that "there appears to be a basis in State case law for construing the term 'imprisonment' as used in Section 56-5-2945 to include time served as part of a suspended sentence or on parole or probation as well as time spent in physical incarceration." 1992 Op. S.C. Att'y Gen. 56. The opinion noted, however, that this construction was not free from doubt. Id. We believe these cases do not support Department's position.

In Germany, the defendant petitioned for habeas corpus, arguing he had been sentenced incorrectly for escaping a chain gang. Defendant's original sentence had been five years, provided that upon service of nine months the balance would be suspended and the defendant would be placed on parole. Defendant's sentence for escape was not to exceed his "original sentence," and he argued that "original sentence" referred only to the nine-month unsuspended portion of his sentence. The supreme court concluded otherwise and stated that the suspended portion was an inseparable part of his sentence. Germany, 216 S.C. at 185, 57 S.E.2d at 166.

The supreme court employed a similar analysis in Picklesimer, where it interpreted the language "at least one third of the term for which he was sentenced to serve." Picklesimer, 254 S.C. at 599, 176 S.E.2d at 538; see Mims, 273 S.C. at 741-42, 259 S.E.2d at 602 (applying a similar analysis in determining the impact of a defendant's "consecutive, suspended" sentence when computing parole eligibility).

Because we are not called upon to determine the term to which Davis was sentenced, but rather only his term of imprisonment, the analysis in these cases is simply not applicable.

II.

Department also appeals the trial court's ruling that multiple convictions under the DUI statute arising out of a single act should result in only one three-year suspension of Davis's...