THE STATE OF SOUTH CAROLINA

In The Supreme Court

The State, Appellant,

v.

Kenneth L. Tootle, Respondent.

Appeal From Beaufort County

Jackson V. Gregory, Judge

Opinion No. 24787

Heard, April 7, 1998 - Filed May 11, 1998

REVERSED

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.

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FACTS

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.

ISSUE

Does the chief administrative judge have the authority to

admit an applicant to PTI over the prosecutor's objection?

DISCUSSION

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

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).

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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

(Supp. 1997).

As provided in § 17-22-100, the determination of PTI eligibility under

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.

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§§ 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

REVERSED.

FINNEY, C.J., TOAL, WALLER and BURNETT, JJ., concur.

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

discretion.

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