THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT
BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING
EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

In the Matter of the Care and Treatment of Andrew L. Williams,        Appellant.

Appeal From Richland County
Thomas W. Cooper, Circuit Court Judge

Unpublished Opinion No. 2004-UP-330
Submitted May 12, 2004 – Filed May 17, 2004

AFFIRMED

Andrew Johnson, of Columbia, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Deputy Attorney General Treva Ashworth, Assistant Attorney General Deborah R. J. Shupe and Assistant Attorney General R. Westmoreland Clarkson, all of Columbia, for Respondent.

PER CURIAM:  On January 14, 2003, a Richland County jury found the State had proven beyond a reasonable doubt that Andrew L. Williams was a sexually violent predator as that term is defined in the Sexually Violent Predator Act (the “Act”). [1]   Williams appeals, arguing the trial court erred in not finding the case barred by res judicata.  We affirm.   

FACTS

Williams has a history of committing sexually violent offenses.  For instance, in 1995, the State filed a petition against him for criminal sexual conduct with a minor. [2]   Following a hearing, the court found Williams guilty on a lesser charge of assault and battery of a high and aggravated nature and sentenced him to an indeterminate period in the South Carolina Department of Juvenile Justice.

While Williams was incarcerated at the Department of Juvenile Justice, the State charged him with three acts of criminal sexual conduct in the first degree. [3]   Williams pled guilty to one count of criminal sexual conduct in the first degree in exchange for the State dismissing the remaining charges.  Again, the court committed Williams to the Department of Juvenile Justice for an indeterminate period not to exceed his twenty-first birthday.  Williams remained at the Department of Juvenile Justice until he reached the age of seventeen, at which time, he was transferred to the Department of Corrections.

Williams attended sex offender treatment during the time he was incarcerated at the Department of Corrections.  However, the Department terminated him from the program for behavior problems, including touching and striking a female employee.  Williams also committed other behavioral offenses such as when he was given a sexual misconduct charge for masturbating in front of a female officer. 

Despite these problems, Williams was paroled in July 2000.  Two of the conditions of his parole were that he attend sex offender treatment and stay away from drugs.  On September 6, 2000, the State filed a petition pursuant to the Act to have Williams confined to a “secure facility for long term control, care, and treatment.”  In an order dated September 28, 2000, Judge James R. Barber found there was probable cause to believe Williams met the criteria of a sexually violent predator and ordered his detention pending a probable cause hearing.

On April 9, 2001, following the probable cause hearing pursuant to section 44-48-80 of the Act, Judge Alison R. Lee found the State had “failed to demonstrate that probable cause exist[ed] to find that [Williams] is a sexually violent predator.”  Subsequent to Judge Lee’s probable cause determination, Williams attended a parole hearing for failing to attend the required sex offender treatment.  In August 2001, at a subsequent parole hearing, Williams tested positive for marijuana and still had not completed sex offender treatment.  Finally, in November 2001, Williams’ parole was revoked for failing to comply with his parole conditions.

On May 24, 2002, relying in part on events occurring after Judge Lee’s probable cause determination, the State filed its second petition to have Williams confined in a secure facility.  One of the bases for this petition was Williams’ failure to attend the sex offender aftercare treatment.  In an order dated June 14, 2002, and again on July 10, 2002, Judge G. Thomas Cooper, Jr. found that probable cause existed to believe Williams was a sexually violent predator as defined in the Act.  Thereafter, the matter came to trial before Judge Thomas W. Cooper. 

Prior to the start of trial, the court heard Williams’ summary judgment motion.  Williams argued the case was barred by the doctrine of res judicata, relying on the April 9, 2001, probable cause determination.

The trial court denied Williams’ motion for summary judgment holding that because the prior probable cause hearing was not “on the merits,” the doctrine of res judicata did not apply.  Following this ruling, the case proceeded to a jury trial, after which Williams was found to be a sexually violent predator under the Act.  Pursuant to this jury finding, the trial court committed Williams to the Department of Mental Health for long term treatment. 

ISSUE

Did the trial court err in holding that a determination of a lack of probable cause in a prior action arising under the Act does not amount to a judgment on the merits?

DISCUSSION

Williams’ sole argument on appeal is that the trial court erred in not finding the second petition and following action barred by the doctrine of res judicata.

Under the doctrine of res judicata, a final judgment on the merits in a prior action will act to bar the parties and those in privity with them from initiating a second action based on the same claim, to the extent the second claim relates to issues actually litigated in the first action, or to issues which might have been litigated in the first action.  Prince v. City of Georgetown, 297 S.C. 185, 189, 375 S.E.2d 335, 337 (Ct. App. 1988).  “To establish res judicata, the defendant must prove three elements: (1) identity of the parties; (2) identity of the subject matter; and (3) adjudication of the issue in the former suit.”  Nelson v. QHG of South Carolina, Inc., 354 S.C. 290, 304, 580 S.E.2d 171, 178 (Ct. App. 2003) (citing Sealy v. Dodge, 289 S.C. 543, 347 S.E.2d 504 (1986) (further citations omitted)).

Appellant argues the prior probable cause hearing amounted to an adjudication on the merits as to whether probable cause existed to believe Williams was a sexually violent predator.  Accordingly, Williams argues the second hearing should have been barred by res judicata.  We disagree and find the trial court correctly held the action was not barred.

Significantly, Appellant cites no cases or other authority to support his contention that a probable cause hearing amounts to a decision on the merits and we are not aware of any.  As such, we conclude a preliminary hearing for the purpose of determining probable cause under section 44-48-80 of the South Carolina Code is not the equivalent of an adjudication on the merits.  The very purpose of the probable cause hearing under this section is to determine “whether probable cause exists to believe that the person is a sexually violent predator.”  S.C. Code Ann. § 44-48-80(B)(3) (2002).  Moreover, section 44-48-90 provides that within sixty days of the hearing, “the court shall conduct a trial to determine whether the person is a sexually violent predator.”  S.C. Code Ann. § 44-48-90 (2002).  Therefore, according to the plain language of the Act, a probable cause hearing is by definition not a hearing on the merits.  The purpose of the probable cause hearing is to determine if sufficient evidence exists to bind the matter over for trial on the merits, i.e., to adjudicate whether the person is indeed a sexually violent predator under the Act.

Williams’ argument further fails to acknowledge that the present action includes additional facts concerning his parole violations that occurred after the initial probable cause determination.

CONCLUSION

We find the trial court correctly held that this action was not barred by the doctrine of res judicata.  The decision of the trial court is

AFFIRMED.

ANDERSON, HUFF, and KITTREDGE, JJ.,  concur.