ORDERS:
ORDER
This matter is before the Administrative Law Judge Division ("Division") pursuant to Appellant's Notice of
Appeal filed May 16, 2000. Appellant claims the Department refuses to give him earned educational credits
and bonus educational credits, which he was entitled to under S.C. Code Ann. § 24-13-230 at the time he was
sentenced. In an Order of Remand issued November 1, 2000, I ordered the Department to hold a hearing
regarding Appellant's claims. The Department filed a Motion for Reconsideration on November 14, 2000. In
an Order Denying Motion for Reconsideration issued January 10, 2001, I ordered the Department to hold a
hearing within twenty days of the date of that order or appear to show cause why the hearing was not held.
In a letter dated February 5, 2001, Appellant informed the Division that the Department held the hearing on
February 1, 2001. Appellant asserted the Department failed to comply with the order of January 10, 2001,
because the Department held the hearing two days after the deadline provided in the order. Appellant
requested that the Department be required to appear to show cause why it should not be held in contempt for
failing to comply with the order of January 10, 2001.
On February 27, 2001, the Department filed a transcript of the hearing and a copy of the letter addressed to
Appellant denying his request to receive educational credits. According to the transcript, the Department
offered to have the hearing on Tuesday, January 30, 2001. Appellant, however, refused to sign the waiver of
his forty-eight-hour notice. As a result, the hearing was held two days later on Thursday, February 1, 2001.
Although the Department should have given Appellant the forty-eight-hour notice in time to hold the hearing
on January 30, I do not find the Department's action constitutes willful disobedience of my order.
SeeHenderson v. Henderson, 298 S.C. 190, 379 S.E.2d 125 (1989). I, therefore, will not require the
Department to appear to show cause for failure to hold the hearing on or before January 30, 2001.
Regarding the merits of Appellant's appeal, Appellant asserted in his Notice of Appeal that the Department's
refusal to apply educational credits to reduce his sentence constituted an ex post facto violation. I disagree.
Subsequent legislation that reduces an inmate's benefits, and thereby increases the amount of time the inmate
serves, substantively violates the ex post facto clauses of the South Carolina and United States Constitutions.
Elmore v. State, 305 S.C. 456, 409 S.E.2d 397 (1991). However, "[t]he law existing at the time of the
offense, not the time of sentencing, determines whether an increase of punishment or reduction of benefits
constitutes an ex post facto violation." Id., at 459, 409 S.E.2d at 399 (citing Miller v. Florida, 482 U.S. 423
(1987)).
Prior to 1986, § 24-13-230 allowed inmates to earn work credit. See S.C. Code Ann. § 24-13-230 (Supp.
1978) (an inmate in the custody of the Department of Corrections "who is assigned to a productive duty
assignment [may be allowed] a reduction from the term of his sentence of zero to one day for every two days
so employed" unless the inmate was sentenced to life imprisonment). In 1986, the Legislature enacted The
Omnibus Criminal Justice Improvements Act, 1986 Act No. 462 ("the Act"). Section 14 of the Act amended
S.C. Code Ann. § 24-13-230, creating educational credit for inmates but preventing the credit from applying
to inmates convicted of a violent crime. See S.C. Code Ann. § 24-13-230 (Supp. 1986) (an inmate in the
custody of the Department of Corrections "who is assigned to a productive duty assignment or who is
regularly enrolled and actively participating in an academic, technical, or vocational training program [may be
allowed] a reduction from the term of his sentence of zero to one day for every two days he is employed or
enrolled" unless the inmate was sentenced to life imprisonment) (emphasis added). Section 14 of the Act,
however, provided that educational credit "is not available to any individual convicted of a violent crime as
defined in Section 16-1-60." S.C. Code Ann. § 24-13-230(c)(2) (Supp. 1986). Section 33 of the Act
simultaneously created S.C. Code Ann. § 16-1-60, which defined violent crime.
On June 22, 1981, Appellant pled guilty to manslaughter and armed robbery, which were committed on
August 18, 1980. At the time Appellant committed manslaughter and armed robbery, no statute allowed
inmates to earn educational credit. The statute creating educational credit for inmates was not enacted until
1986. The same act that created the educational credit, however, also prohibited any inmate from earning
educational credit if the inmate had been convicted of a violent crime. Since 1986, armed robbery has been
defined as a violent crime under S.C. Code Ann. § 16-1-60. Because Appellant was convicted of the violent
crime of armed robbery, Appellant was not eligible to earn educational credit when it was created in 1986.
Because no inmate could earn educational credit prior to 1986 and Appellant was not eligible to earn
educational credit in 1986, Appellant never has been eligible to earn educational credit. The denial of
educational credit for Appellant, therefore, is not an ex post facto violation.
IT IS HEREBY ORDERED that the Department's final decision is affirmed and this case is dismissed.
AND IT IS SO ORDERED.
__________________________________
MARVIN F. KITTRELL
Chief Administrative Law Judge
August 30, 2001
Columbia, South Carolina
APPEAL RIGHTS
You are entitled to appeal this final order of the Administrative Law Judge Division by filing a petition for
judicial review in circuit court and serving such petition on opposing parties within thirty (30) days after
receipt of this order. S.C. Code Ann. § 1-23-610 (Supp. 2000). The petition may be filed in any circuit court
as long as the chosen forum is neither arbitrary nor unreasonable, and provided that no statute controls venue
in a particular type of case. The review of the administrative law judge's order must be confined to the
record. The reviewing tribunal may affirm the decision or remand the case for further proceedings; or it may
reverse or modify the decision if the substantive rights of the petitioner have been prejudiced because the
finding, conclusion, or decision is: (a) in violation of constitutional or statutory provisions; (b) in excess of
the statutory authority of the agency; (c) made upon unlawful procedure; (d) affected by other error of law; (e)
clearly erroneous in view of the reliable, probative and substantial evidence on the whole record; or (f)
arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion. |
