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Failure to Register Can Result in Lifetime Electronic Monitoring in SC

Sex offenses in SC have some of the strictest sex offender registry and electronic monitoring requirements in the country. A conviction for a sex offense can result in a requirement of lifetime registration and, in some cases, lifetime electronic monitoring in SC.

The requirements have relaxed a bit over time. For example, SC courts have held that lifetime electronic monitoring in SC with no opportunity for review and no determination as to the need for electronic monitoring is unconstitutional.

On the other hand, the circumstances where courts can or must order electronic monitoring in SC have expanded. For example, courts are permitted to order electronic monitoring when a sex offender violates a condition of their probation, parole, or community supervision or when a sex offender is convicted for failure to register.

In some cases, courts are required to order electronic monitoring for failure to register or probation violations. When is electronic monitoring mandatory, when is it discretionary, and is there a way to end electronic monitoring once it has been ordered?

When is Electronic Monitoring in SC Required?

SC Code Section 23-3-540 states when the court must order electronic monitoring for a person convicted of a sex offense. It also says when electronic monitoring may be ordered by the court or, in some cases, must be ordered by the court after a violation of probation or a conviction for failure to register.

What is the Difference Between Sex Offender Registration and Electronic Monitoring?

Most sex-related offenses in SC require registration after conviction. Registration means that the person must appear at the Sheriff's Office and provide their photograph, address, and other information to be included on a pubic, searchable, online database.

In some cases, SC law also requires electronic monitoring. Like pretrial electronic monitoring as a condition of bond, electronic monitoring of a person convicted of a sex offense requires the person to wear an ankle monitor that they cannot remove so that the probation department can track where they are at all times...

Of course, electronic monitoring as a condition of bond is a temporary situation that lasts until your case is called for trial or until your attorney gets your bond conditions changed. Electronic monitoring in SC of sex offenders, however, is a more permanent situation that could last ten years, decades, or even a lifetime.

Electronic Monitoring in SC Upon Conviction

Courts must order electronic monitoring in SC when a person has been convicted of criminal sexual conduct (CSC) with a minor in the first degree or in the third degree:

(A) Upon conviction, adjudication of delinquency, guilty plea, or plea of nolo contendere of a person for committing criminal sexual conduct with a minor in the first degree, pursuant to Section 16-3-655(A)(1), or criminal sexual conduct with a minor in the third degree, pursuant to Section 16-3-655(C), the court must order that the person, upon release from incarceration, confinement, commitment, institutionalization, or when placed under the supervision of the Department of Probation, Parole and Pardon Services shall be monitored by the Department of Probation, Parole and Pardon Services with an active electronic monitoring device.

Courts may order electronic monitoring in SC when a person has been convicted of an offense listed in subsection (G):

  • CSC with a minor in the second degree under certain circumstances;
  • Engaging a child for sexual performance;
  • Producing, directing, or promoting sexual performance by a child;
  • Assaults with intent to commit CSC involving a minor;
  • Kidnapping of a person younger than 18 unless the person is a parent; or
  • Trafficking in persons unless the court finds that there was no sex offense.

What if electronic monitoring is not ordered after a conviction? Can the court go back and order electronic monitoring later?

Electronic Monitoring in SC for Violation of a Condition of Probation

If a person convicted of CSC with a minor first degree or third degree later violates a condition of their probation, parole, or community supervision, the court must order electronic monitoring:

(C) A person who is required to register pursuant to this article for committing criminal sexual conduct with a minor in the first degree, pursuant to Section 16-3-655(A)(1), or criminal sexual conduct with a minor in the third degree, pursuant to Section 16-3-655(C), and who violates a term of probation, parole, community supervision, or a community supervision program must be ordered by the court or agency with jurisdiction to be monitored by the Department of Probation, Parole and Pardon Services with an active electronic monitoring device.

On the other hand, if a person violates a condition of probation, parole, or community supervision after a conviction for one of the other offenses listed in subsection (G), the court may order electronic monitoring:

(D) A person who is required to register pursuant to this article for any other offense listed in subsection (G), and who violates a term of probation, parole, community supervision, or a community supervision program, may be ordered by the court or agency with jurisdiction to be monitored by the Department of Probation, Parole and Pardon Services with an active electronic monitoring device.

Electronic Monitoring in SC for Failure to Register

When a person is convicted of failure to register as a sex offender, the same rules apply. The court must order electronic monitoring if the underlying conviction that required registration was CSC with a minor first or third degree:

(E) A person who is required to register pursuant to this article for committing criminal sexual conduct with a minor in the first degree, pursuant to Section 16-3-655(A)(1), or criminal sexual conduct with a minor in the third degree, pursuant to Section 16-3-655(C), and who violates a provision of this article, must be ordered by the court to be monitored by the Department of Probation, Parole and Pardon Services with an active electronic monitoring device.

If a person is convicted of failure to register after a conviction for one of the other offenses listed in subsection (G), the court may order electronic monitoring:

(F) A person who is required to register pursuant to this article for any other offense listed in subsection (G), and who violates a provision of this article, may be ordered by the court to be monitored by the Department of Probation, Parole and Pardon Services with an active electronic monitoring device.

State v. Mitchell - What Happens if the Court Forgets?

In State v. Mitchell, decided by the SC Court of Appeals on June 2, 2019, the Court basically declared "this is a mess," and remanded the case to the trial court to start over. The defendant:

  • Was convicted of lewd act on a child in 1999 (lewd act is now incorporated into CSC with a minor third degree);
  • Was convicted of failure to register in 2001 but the court did not order electronic monitoring (the requirement of monitoring after a conviction for failure to register was not law in SC until 2005);
  • Was convicted of failure to register again in 2012 but the court did not order electronic monitoring;
  • Was brought before the court for a probation violation for an unrelated grand larceny charge in 2014, where the probation department asked the court to order electronic monitoring but the court continued the hearing so he could retain an attorney; and
  • Despite not having a hearing on the matter, the court signed an order placing him on electronic monitoring.

The Court of Appeals remanded the case for "an individualized inquiry into the reasonableness of the [monitoring]" pursuant to State v. Ross, 423 S.C. 504, 815 S.E.2d 754 (2018), but declined to answer any of the other looming questions.

Questions like, whether the trial court can order electronic monitoring when a defendant has already served his sentence, been released from prison, is not on probation or parole related to the sex offense, and therefore was not under the jurisdiction of the trial court when it ordered the electronic monitoring?

Or, whether a trial court can issue an order placing someone on electronic monitoring when they didn't even have a hearing on the matter? Or, whether a trial court can issue an order placing someone on electronic monitoring when they were denied the right to counsel at the hearing (the hearing that didn't happen)?

Can I Get Electronic Monitoring in SC Removed?

In addition to the initial inquiry as to whether the electronic monitoring is reasonable under the Fourth Amendment as required by Ross, SC Code Section 23-3-540 says that a person who has been placed on electronic monitoring has the right to petition the court and has the right to a hearing to determine if electronic monitoring is still necessary after ten years.

If the court finds that there is clear and convincing evidence that the person has complied with the terms and conditions of the electronic monitoring and that there is no longer a need to electronically monitor the person, then the court may order the person to be released from the electronic monitoring requirements of this section.

If that petition is denied, the person has the right to petition the court again every five years.

Got Axelrod?

If you are facing criminal charges that may require to register as a sex offender, you may also be looking at forced electronic monitoring either after your conviction or down the road if the court determines that you violated the conditions of your probation or failed to register.

Whether you are fighting allegations of a sex offense or fighting to get electronic monitoring removed, the SC sex offense attorneys at Axelrod and Associates want to help. Call Axelrod and Associates now at (843) 916-9300 or email us to talk with a Myrtle Beach, SC criminal defense attorney today.

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