Did removing sex offender registration as a probation condition end a separate registration duty?

Plain-English summary

In 2012, the South Carolina Attorney General concluded that a defendant still had to register as a sex offender despite a judge's order removing registration as a probation condition. The AG said the Sex Offender Registry Act imposed a separate duty because the pleaded offense fell within the statute's category and the conduct involved minors.

The defendant had originally been indicted for lewd acts upon children, then pleaded guilty to exposure of private parts in a lewd and lascivious manner. The judge later said registration was no longer required “as a condition of probation.” The AG distinguished that limited order from the Act's obligation and concluded that the defendant “must register for life under the Act.” It said failure to do so would expose him to criminal penalties.

Currency note

This opinion was issued in 2012. Subsequent statutory amendments, court decisions, or later
AG opinions may have changed the analysis. Treat this page as historical context, not current
legal advice. Verify current law before relying on any specific rule, deadline, or remedy
mentioned here.

Common questions

Did the probation judge's order eliminate the registry duty? A: The AG said no. The order removed registration as a probation condition; it did not remove the separate statutory duty.

Why did the AG say the statute covered this plea?
A: The opinion said the pleaded offense under § 16-15-365 was in Article 3, Chapter 15 of Title 16 and the conduct involved minors. It applied the minor-related category quoted from §23-3-430.

Was registration limited to the probation term?
A: No. The AG read the Act as requiring lifetime registration for this defendant, independent of the probation term.

Could failure to register carry a separate penalty?
A: Yes. The opinion said failure to register under the Act was a criminal offense and that the defendant's failure would expose him to criminal penalties.

Background and statutory framework

SLED Chief Mark Keel asked about the defendant's duty after a probation order. The AG read that order narrowly: §24-21-430 allowed modification of probation conditions, while the registry statute separately controlled registration. The opinion applied the category in §23-3-430 to the specific plea and minor victims described in the court documents.

Citations and references

The opinion cites the pleaded offense, § 16-15-365; the registry category, §23-3-430; and the probation modification provision, §24-21-430.

Official title

Concerning whether Defendant is required to register as a sex offender.

Requester

Mark Keel, Chief, State Law Enforcement Division

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/february-14-2012/
• Original PDF: https://www.scag.gov/wp-content/uploads/2012/02/keel-m-os-9398-whether-defendant-is-requried-to-register-as-a-sex-offender.pdf

Original opinion text

ALAN WasoN
ATTORNEY GENERAL

February 14, 2012

Mark Keel, Chief
State Law Enforcement Division
P.O. Box 21398
Columbia, SC 29221-1398
Dear Chief Keel:
We received your letter requesting an opinion of this office as to whether Defendant is required to register as a sex offender. We reviewed court documents showing that Defendant was indicted in Charleston County in 2001 for, inter alia, two counts of Lewd Act Upon a Child, in violation of S.C. Code Ann. § 16-15-140. The victims were under the age of sixteen. Defendant subsequently pied guilty on the Indictments to Exposure of Private Parts in Lewd and Lascivious Manner, in violation of§ 16-15-365. Defendant was sentenced to an aggregate six months imprisonment, with five years probation. As a condition of probation, Defendant was required to register as a sex offender under the South Carolina Sex Offender Registry Act (the "Act"). In 2002, Defendant was charged with violating this condition of probation by failing to register as a sex offender. Following a probation revocation hearing in 2003, the trial judge ("Probation Judge") ordered that Defendant's probation be continued. The Probation Judge further ordered that Defendant was not required to register as a sex offender as a condition of probation. The Act is codified at §§23-3-400 et seq. The Act makes it mandatory for a convicted sex offender to register as a sex offender in South Carolina for life. Hendrix v. Taylor, 353 S.C. 542, 579 S.E.2d 320, 322 (2003); Duncan v. State, 391 S.C. 350, 705 S.E.2d 489, 491 (Ct. App. 2011); see §23-3460. Pursuant to §23-3-450, a sex offender must register with the sheriff of the county where he resides. It is also the duty of the offender to provide such information to the Sheriff as is prescribed by SLED. Id. Failure to register or provide other notification as required by the Act is a criminal offense. Section 23-3470; see State v. Latimore, 390 S.C. 88, 700 S.E.2d 456 (Ct. App. 2010). Section 23-3-430 sets forth particular convictions which render an individual a "sex offender'' under the Act. Under this provision: (C) For purposes of this article, a person who has been convicted of, pied guilty or nolo contendere to, or been adjudicated delinquent for any of the following offenses shall be referred to as an offender: (13) violations of Article 3, Chapter 15 of Title 16 involving a minor; ...

REMBERT

c. DENNIS BUILDING • POST OFFICE Box 11549 • COLUMBIA, SC 292ll-1549 • TELEPHONE 803-734-3970 • FACSIMILE 803-253-6283

Chief Keel
Page2
February 14, 2012

Defendant pied guilty to two counts of Exposure of Private Parts in Lewd and Lascivious Manner, in violation of§ 16-15-365. The Probation Judge simply ordered that Defendant was not required to register as a sex offender as~ condition of probation. See §24-21-430 ["The court ... may at any time modify the conditions of probation . . ."]. Regardless of the Probation Judge's order modifying Defendant's requirement to register as a sex offender as a condition of probation, the Act separately requires Defendant to register as a sex offender. The offense for which Defendant pied guilty, §16-15365, is found in Article 3, Chapter 15 of Title 16. Defendant's conduct also involved minors. We therefore advise that Defendant must register for life under the Act. His failure to do so would subject him to criminal penalties. If you have any further questions, please advise.

Very truly yours,

,z(ff;/
N. Mark Rapoport
Senior Assistant Attorney General

REVIEWED AND APPROVED BY:

1d~ue};), ~
kObert D. Cook
Deputy Attorney General