Submitted: September 1, 2013.
Appeal From Berkeley County. Appellate Case No. 2010-161446. R. Markley Dennis, Jr., Circuit Court Judge.
Clifford Thompson, Pro se.
Attorney General Alan McCrory Wilson, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General David A. Spencer, Assistant Attorney General Geoffrey Kelly Chambers, and Assistant Attorney General Kristin M. Simons, all of Columbia, for Respondent.
FEW, C.J. KONDUROS, J., concurs. FEW, C.J. THOMAS, J., dissenting.
[409 S.C. 387] FEW, C.J.
Clifford Thompson appeals the circuit court's order dismissing his declaratory judgment action. In that action, he sought a declaration that his kidnapping convictions did not include a criminal sexual offense and would not require him to register as a sex offender. Thompson argues the circuit court erred in ruling (1) no justiciable controversy existed;  (2) it did not have subject matter jurisdiction to change Thompson's prison classification based on Al-Shabazz v. State, 338 S.C. 354, 527 S.E.2d 742 (1999); and (3) Thompson's claims were moot. We affirm.
Thompson pled guilty to four kidnapping and six armed robbery offenses in 2001, and the court sentenced him to twenty-five years in prison. At that time, a person convicted of kidnapping was required to register as a sex offender when released from prison " except
when the court makes a finding . . . the offense did not include a criminal sexual offense." S.C. Code Ann. § 23-3-430(C)(15) (Supp. 2000); see also S.C. Code Ann. § § 23-3-430(A), -440(1) (Supp. 2000). The sentencing court did not determine whether any of the kidnappings included a criminal sexual offense. Thompson appealed, [409 S.C. 388] and this court affirmed all of his convictions except one kidnapping and one armed robbery. State v. Thompson, Op. No. 2003-UP-252 (S.C.Ct.App. filed Apr. 3, 2003).
In 2009, Thompson filed this action. We find the circuit court properly determined no justiciable controversy existed and dismissed the action because the question of whether Thompson should be required to register as a sex offender is not ripe for adjudication. See Pee Dee Elec. Coop., Inc. v. Carolina Power & Light Co., 279 S.C. 64, 66, 301 S.E.2d 761, 762 (1983) (" Before a court may render a declaratory judgment, an actual, justiciable controversy must exist. A justiciable controversy is a real and substantial controversy [that] is ripe and appropriate for judicial determination, as distinguished from a contingent, hypothetical or abstract dispute." ). This case does not present a justiciable controversy because the current statutes requiring registration do not contemplate that Thompson will register until he is released from prison. See S.C. Code Ann. § 23-3-430(A) (2007) (" Any person . . . who . . . has been convicted of . . . an offense described below . . . shall be required to register pursuant to the provisions of this article." ); S.C. Code Ann. § 23-3-430(C)(15) (Supp. 2013) (listing " kidnapping" as an offense requiring registration " except when the court makes a finding . . . the offense did not include a criminal sexual offense" ); S.C. Code Ann. § 23-3-440 (1) (2007) (" The Department of Corrections . . . shall provide verbal and written notification to the offender that he must register with the sheriff of the county in which he intends to reside within one business day of his release." ). Moreover, " the applicable statute [for determining whether a person must register] is the statute that [409 S.C. 389] exist[s] at the time of [that person's] release from prison," and thus it is unknown whether Thompson will be required to register. Hazel v. State, 377 S.C. 60, 64, 659 S.E.2d 137, 139 (2008). Because the law does not require Thompson to register as a sex offender until he is released from prison, and because the sex offender registry statute may be amended between now and Thompson's release, we find the circuit court properly dismissed Thompson's action. Therefore, we do not reach the merits of Thompson's claim.
Thompson's claim will become ripe for adjudication when he is released from prison, if he is then required by law to register. The plaintiff in Hazel was convicted of kidnapping in 1979 and released from prison on parole in 2002. 377 S.C. at 62, 659 S.E.2d at 138. " Upon release, he was informed that he would be required to register on the Sex Offender Registry." Id. He later filed an action in circuit court claiming he should not
be required to register. Id. " The court granted [Hazel]'s motion for declaratory judgment and found that [he] is not required to register as a sex offender." 377 S.C. at 63, 659 S.E.2d at 138. The supreme court held the circuit court had jurisdiction to hear the dispute and affirmed. 377 S.C. at 65, 659 S.E.2d at 140. Under Hazel, therefore, if Thompson is required upon release from prison to register as a sex offender, he ...