THE STATE OF SOUTH CAROLINA
In The Supreme Court

In the Matter of the Care and Treatment of Donald Lee McCracken, Appellant.

Appeal From Lexington County
Marc H. Westbrook, Circuit Court Judge

Opinion No. 25323
Heard March 7, 2001 - Filed July 23, 2001

AFFIRMED

Kenneth W. Gaines, of Columbia, for appellant.

Attorney General Charles M. Condon, Deputy Attorney General Treva Ashworth, Senior Assistant Attorney General Kenneth P. Woodington, and Assistant Attorney General Steven G. Heckler, all of Columbia, for respondent.

JUSTICE PLEICONES: Appellant was found to be a sexually violent predator (SVP) by a jury and committed to the Department of Mental Health (DMH) for control, care, and treatment pursuant to S.C. Code Ann. §44-48-100 (Supp. 2000). He has appealed, raising both trial errors and constitutional issues. We affirm.

The first issue we address is the State's contention that appellant's release from DMH's custody during the pendency of this appeal renders it moot. Under the SVP Act, ⁽¹⁾ (Act) a person who is committed pursuant to the Act is entitled to an annual review of his status, §44-48-110, or may be released at any time upon the petition of the Director of DMH. §44-48-120. There exists the very real possibility, then, that many SVP appellants will be released before their appeals can be concluded. Since most of the issues raised by appellant are 'capable of repetition but evading review,' we decline to dismiss the appeal on mootness grounds. Byrd v. Irmo High School, 321 S.C. 426, 468 S.E.2d 861 (1996).

Appellant contends the Act is violative of his double jeopardy and ex post facto rights because, although nominally civil in nature, it is in fact punitive. At trial, ⁽²⁾ he did not attempt to distinguish our SVP Act from the Kansas Act upon which it was modeled, and which the United States Supreme Court has held is a civil, non-punitive scheme. Kansas v. Hendricks, 521 U.S. 346, 117 S.Ct. 2072, 138 L.Ed. 2d 501 (1997). Although appellant now argues on appeal that various features of our Act distinguish it from the Kansas Act, these claims were not raised below and, accordingly, are not properly before us now. E.g., Taylor v. Medenica, 324 S.C. 200, 479 S.E.2d 35 (1996). The only issue properly before us is whether the Act, on its face, constitutes a