THE STATE OF SOUTH CAROLINA
In The Supreme Court
The State, Appellant,
Kenneth L. Tootle, Respondent.
Appeal From Beaufort County
Jackson V. Gregory, Judge
Opinion No. 24787
Heard, April 7, 1998 - Filed May 11, 1998
Attorney General Charles Molony Condon, Deputy
Attorney General John W. McIntosh, Assistant
Deputy Attorney General Salley W. Elliott,
Assistant Attorney General Dean H. Secor, and
Senior Assistant Attorney General Charles H.
Richardson, all of Columbia, for appellant.
Ralph V. Baldwin, Jr., of Beaufort; and James B.
Richardson, of Columbia, for respondent.
MOORE., A.J.: The State appeals an order admitting
respondent Tootle to a pretrial intervention program (PTI). We reverse.
STATE v. TOOTLE
Tootle is an attorney admitted to practice in this State. He failed to
file State income tax returns for eight tax years (1985-88 and 1990-93) and
was indicted for violating S.C. Code Ann. § 12-54-40(b)(6)(c) (Supp. 1997).1
Tootle applied to the chief administrative judge of Beaufort County to be
admitted to PTI. The Attorney General2 objected on three grounds: 1) the
chief administrative judge has no authority to admit a defendant to PTI;
2) Tootle is an attorney and therefore PTI is not appropriate; and 3) the
South Carolina Department of Revenue opposes PTI for tax law violators.
Over the Attorney General's objection, the chief administrative judge found
he had the authority to admit Tootle into the PTI program and that PTI
was appropriate in this case.
Does the chief administrative judge have the authority to
admit an applicant to PTI over the prosecutor's objection?
An offender makes application for PTI under S.C. Code Ann. § 17-22-
100 (Supp. 1997) which provides for application "to an intervention
program or to the chief administrative judge of the court of general
sessions." This section further provides:
Applications received by the chief administrative judge of the
court of general sessions under this section may be
preliminarily approved by the judge pending, a determination
by the pretrial office that the offender is eligible to participate
in a pretrial program pursuant to sections 17-22-50 and 17-22-
60. Applications received by the chief administrative judge of
1Under this section, failure to file a return is a misdemeanor punishable
by a fine of $10,000 and/or one year in prison. It is undisputed Tootle was
entitled to a refund for each of the years he failed to file.
2Attorney General Condon prosecuted this case in his capacity as chief
prosecuting officer of the State. See S.C. Const. art. V, § 24; see also S.C.
Code Ann. § 1-7-100(2) (1986) (when interest of State requires, Attorney
General shall be present and have the direction and management of any
cause in which the State is a party or interested).
STATE v. TOOTLE
the court of general sessions . . . must be forwarded to the
pretrial office. (emphasis added).
The underscored language of this section provider the chief
administrative judge may give only preliminary approval. This approval is
contingent upon the determination of eligibility under the two statutes
governing PTI eligibility, S.C. Code Ann. §§ 17-22-50 and -60 (Supp.
1997),3 a determination expressly left to the "pretrial office" which is under
the direct supervision of the circuit solicitor. See S.C. Code Ann. § 17-22-
30(C) (1985). The judge has no discretion but must forward any
application he receives to that office. Thus, § 17-22-100 vests final
approval in the circuit solicitor or, in this case, the Attorney General.4
Moreover, under this statutory scheme, the judge cannot overrule the
solicitor's objection to an applicant's admission to PTI without running
afoul of our constitutional provision requiring a separation of powers. See
S.C. Const. art. I, § 8. A circuit judge is a member of the judicial
department and cannot constitutionally exercise the function of a member
of the executive department. State ex rel. McLeod v. Yoncel, 274 S.C. 81,
261 S.E.2d 303 (1979). The solicitors and Attorney General are members
of the executive branch of government. See S.C. Code Ann. § 1-1-110
As provided in § 17-22-100, the determination of PTI eligibility under
3Section 17-22-50 specifies that certain persons may not be considered
and § 17-22-60 provides PTI "is appropriate only where" seven standards of
eligibility are met.
4In finding he had the authority to admit Tootle to PTI, the judge
looked to S.C. Code Ann. § 17-22-80 (Supp. 1997) which provides in part:
In each case involving admission to an intervention program, the
solicitor or judge, if application is made to the court pursuant to
Section 17-22-100, shall consider the recommendations of the law
enforcement agency and the victim, if any, in making a decision.
The judge found the reference to the judge's "making a decision" supported
the conclusion he had authority to admit a defendant to PTI. Read in
conjunction with § 17-22-100, however, the judge makes a decision but it is
limited to whether he should preliminarily approve the applicant for final
approval by the circuit solicitor.
STATE v. TOOTLE
§§ 17-22-50 and -60 is left to the executive branch. Further, these sections
establish minimum requirements for PTI eligibility but do not mandate
that anyone who meets these criteria must be admitted to PTI. There is
no legal right or entitlement to PTI and no factual determination is
required to support its denial. A determination of PTI ineligibility is
therefore a completely discretionary executive decision and not reviewable
by the judicial department. See Rose v. Beasley, ___ S.C. ___, 489 S.E.2d
625 (1997) (under our separation of powers doctrine, judicial discretion
cannot be substituted for that of an executive body); State v. Thrift, 312
S.C. 282, 440 S.E.2d 341 (1994) (judicial department cannot infringe on
unfettered prosecutorial discretion).5
We hold the chief administrative judge erred in substituting his
discretion for that of the Attorney General and admitting Tootle to PTI.6
Accordingly, the order of the circuit court is
FINNEY, C.J., TOAL, WALLER and BURNETT, JJ., concur.
5On the other hand, where an executive decision is not completely
discretionary and a fixed legal right or entitlement depends upon an
executive's factual determination, the court has limited review and may set
aside a decision that is illegal, arbitrary, or unsupported by any substantial
evidence. Bd. of Bank Control v. Thomason, 236 S.C. 158, 113 S.E.2d 544
(1960) (licensing case); see also Rose, supra (limited review of executive
decision removing officer for misconduct); Guerard v. Whitner, 276 S.C. 521,
280 S.E.2d 539 (1981) (limited review of agency decision issuing permit).
6The judge's finding that the Attorney General's refusal to admit an
attorney to PTI constituted selective prosecution violative of equal protection
does not validate Tootle's admission to PTI. Equal protection allows a
defendant to challenge a sentence or conviction on the ground it is the result
of selective enforcement of a criminal law. See McCleskey v. Kemp, 481 U.S.
279 (1981). Here there has been no conviction. Equal protection does not
expand the court's power to infringe on the initial exercise of prosecutorial