THE STATE OF SOUTH CAROLINA
In The Supreme Court
Gary Russell Farris, Petitioner,
State of South
ON WRIT OF CERTIORARI
Appeal From York County
John C. Hayes, III, Judge
Opinion No. 24891
Submitted January 21, 1999 - Filed January 25, 1999
Deputy Chief Attorney Joseph L. Savitz, III, of
South Carolina Office of Appellate Defense, of
Columbia, for petitioner.
Attorney General Charles M. Condon, Chief Deputy
Attorney General John W. McIntosh, Assistant
Deputy Attorney General Teresa A. Knox, and
Assistant Attorney General Matthew M. McGuire,
of Columbia, for respondent.
MOORE, A.J.: Petitioner brought this action for post-
conviction relief (PCR) alleging his participation in an extended work
release program was unlawfully terminated. We granted a writ of
certiorari to review the denial of relief and now affirm.
In 1989, petitioner pled guilty to second degree burglary and assault
and battery with intent to kill. He was sentenced to consecutive terms of
twenty and fifteen years respectively. No direct appeal was taken. In
1994, petitioner was admitted to a work release program pursuant to S.C.
Code Ann. § 24-13-610 (1989). In 1996, this statute was repealed by 1996
S.C. Act No. 441 and petitioner's participation in work release was
Is petitioner's termination from a work release program for
which he was eligible when sentenced an ex post facto
To fall within the ex post facto prohibition, a law must be
retrospective and must disadvantage the offender by altering the definition
of criminal conduct or increasing the punishment for the crime. Lynce v.
Mathis, 519 U.S. 433, 117 S.Ct. 891, 137 L.Ed.2d 63 (1997); State v.
Matthews, 296 S.C. 379, 373 S.E.2d 587 (1988). The question here is
whether retrospective application of the Act repealing the work release
statute increased petitioner's punishment.
In California Dept. of Corrections v. Morales, 514 U.S. 499, 115 S.Ct.
1597, 131 L.Ed.2d 588 (1995), the United States Supreme Court found no
ex post facto violation where the challenged law produced no significant
risk of increasing the actual term of confinement. Other federal courts
have followed Morales and found no ex post facto violation in the
revocation of work release because there is no increase in the actual term
of confinement. Lee v. Governor of State of New York, 87 F.3d 55 (2d Cir.
1996); Dominique v. Weld, 73 F.3d 1156 (1st Cir. 1996). We adopt this
analysis and find no ex post facto violation in this case.1 Accordingly, the
length of an offender's prison term. See Plyler v. Moore, 129 F.3d 728 (4th
Cir. 1997) (finding ex post facto violation in retrospective change in
supervised furlough as increase in length of incarceration); State v. Elmore,
denial of PCR is
FINNEY, C.J., TOAL and WALLER, JJ., concur. BURNETT, A.J., not participating.
affecting parole eligibility is ex post facto violation).