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 Derrick D. Swinney, Appellant.

Appeal From Darlington County
 J. Michael Baxley, Circuit Court Judge

Unpublished Opinion No. 2008-UP-156
Submitted March 3, 2008 – Filed March 12, 2008  

AFFIRMED

Appellate Defender LaNelle C. Durant, South Carolina Commission, of Columbia, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Attorney General Deborah R. J. Shupe, Assistant Attorney General Brandy A. Duncan, all of Columbia; for Respondent.

PER CURIAM: Derrick D. Swinney appeals his commitment to the South Carolina Department of Mental Health (the Department) as a sexually violent predator.  We affirm.[1]

FACTUAL / PROCEDURAL BACKGROUND

On November 29, 1999, Swinney pled guilty to criminal sexual conduct.  He was sentenced to imprisonment for a period of five years. 

Prior to Swinney’s scheduled release from prison, his case was referred to the sexually violent predator multi-disciplinary team.[2]  The multi-disciplinary team reviewed Swinney’s case, determined he satisfied the definition of a sexually violent predator as provided in the Sexually Violent Predator Act (the Act),[3] and forwarded the case to the prosecutor’s review committee.[4]  The prosecutor’s review committee reviewed the case and agreed there was probable cause to believe Swinney satisfied the criteria for commitment under the Act.[5]  The State subsequently filed a petition in circuit court to commit Swinney to the Department for care and treatment as a sexually violent predator.[6]  After a hearing,[7] the trial court held probable cause existed to find Swinney met the criteria for commitment and ordered a mental health evaluation by Dr. Pamela Crawford.  Dr. Crawford evaluated Swinney and concluded he did not meet the criteria for commitment under the Act.  The trial court, therefore, dismissed the State’s petition without prejudice. 

Swinney was released to community supervision on December January 29, 2004.  Subsequent to his release, Swinney’s community supervision was revoked because he failed to attend sex offender counseling and failed to comply with a home detention order.  In addition, in May 2005, Swinney was charged with criminal sexual conduct, assault and battery of a high and aggravated nature, and kidnapping. 

On September 6, 2005, relying in part on events occurring after Swinney’s release from prison, the State filed its second petition to have Swinney confined to the Department.  The trial court found probable cause existed to find Swinney was a sexually violent predator.  Again, the trial court ordered that the Department conduct a mental health evaluation of Swinney.  Dr. Donna Schwartz-Watts evaluated Swinney and concluded he met the criteria for civil commitment. 

The matter came to trial on August 2, 2006.  Prior to the start of the trial, Swinney moved to dismiss the case on the ground it was barred by the doctrine of res judicata.  Swinney relied on the first probable cause hearing and evaluation and the fact that he had no new convictions.  The trial court denied Swinney’s motion, finding the prior predator case was dismissed without prejudice and the events subsequent to Swinney’s release constituted a substantial change in circumstances that warranted the new action.  Following the trial court’s ruling, the case proceeded to a jury trial. 

Dr. Schwartz-Watts testified for the State.  She opined Swinney suffers from “sexual disorder not other specified” that makes him likely to sexually assault women with whom he has a sexual relationship.   Dr. Schwartz-Watts stated it was her medical opinion that Swinney is predisposed to commit future acts of sexual violence.  She stated Swinney’s history of substance abuse, history of sexual violence, resistance to seek treatment, refusal to admit his offending behavior, and violation of his community supervision influenced her opinion. She ultimately concluded Swinney met the requirements to be considered a sexually violent predator.

The jury found beyond a reasonable doubt Swinney was a sexually violent predator.  The trial court committed Swinney to the Department for long-term treatment.  Swinney appeals.

LAW / ANALYSIS

I.  Res Judicata

Swinney argues the trial court erred in denying his motion to dismiss because the State’s second petition was barred by res judicata.

Under the doctrine of res judicata, a final judgment on the merits in a prior action will bar the parties from initiating a second action based on the same issues.[8]  Res judicata requires: (1) the judgment to be final, valid, and on the merits; (2) the parties in the subsequent action to be identical to those in the first; and (3) the second action to involve matter properly included in the first action.[9]  

Swinney contends the initial probable cause hearing and dismissal without prejudice constituted a final judgment on the merits.   We disagree.

The Act provides that the purpose of a probable cause hearing is to determine “whether probable cause exists to believe the person is a sexually violent predator.”[10]  The Act further provides if the court determines probable cause exists, “the court shall conduct a trial to determine whether the person is a sexually violent predator.”[11]  A probable cause hearing, therefore, does not constitute a final judgment on the merits.  Instead, a probable cause hearing is simply a preliminary hearing for the purpose of determining whether probable cause exists to set the matter for trial on the merits.

Furthermore, a dismissal without prejudice does not constitute a final adjudication on the merits. [12] 

Here, the trial court dismissed the State’s initial petition without prejudice after a probable cause hearing and a mental health evaluation.  The initial action, therefore, did not constitute a final judgment on the merits.  Accordingly, res judicata did not bar the State’s second petition or subsequent trial.

II.  Sexually Violent Predator Act

Swinney also argues the trial court erred in allowing the State to proceed with its case because the State did not meet the required elements as outlined in the Act. 

A sexually violent predator is defined in the Act as “a person who (a) has been convicted of a sexually violent offense; and (b) suffers from a mental abnormality or personality disorder that makes the person likely to engage in acts of sexual violence if not confined in a secure facility for long-term control, care, and treatment.”[13]  “Mental abnormality” is defined as “a mental condition affecting a person’s emotional or volitional capacity that predisposes the person to commit sexually violent offenses.”[14]  The phrase “likely to engage in acts of sexual violence” is defined as a “propensity to commit acts of sexual violence . . . of such a degree as to pose a menace to the health and safety of others.”[15] 

Here, Swinney pled guilty to criminal sexual conduct, a sexually violent offense under the Act.[16]  Also, the record shows evidence Swinney suffers from a mental abnormality or personality disorder, making him likely to engage in additional acts of sexual violence.  As set forth above, Dr. Schwartz-Watts testified Swinney suffers from “sexual disorder not other specified,” which predisposes him to commit future acts of sexual violence.  Dr. Schwartz-Watts further opined Swinney met the criteria for commitment under the SVP Act. Accordingly, Swinney’s civil commitment is

AFFIRMED.

HEARN, C.J., PIEPER, JJ., and GOOLSBY, A.J., concur.

[1]  We decide this case without oral argument pursuant to Rule 215, SCACR.

[2]  See S.C. Code Ann. § 44-48-40(A)(1) (Supp. 2006).

[3]  S.C. Code Ann. § 44-48-10 et seq. (Supp. 2006).

[4]  See S.C. Code Ann. § 44-48-50 (Supp. 2006).

[5]  See S.C. Code Ann. § 44-48-60 (Supp. 2006).

[6]  See S.C. Code Ann. § 44-48-70 (Supp. 2006).

[7]  See S.C. Code Ann. § 44-48-70 (Supp. 2006).

[8]  Garris v. S.C. Reinsurance Facility, 333 S.C. 432, 449, 511 S.E.2d 48, 57 (1999). 

[9]  Town of Sullivan’s Island v. Felger, 318 S.C. 340, 344, 457 S.E.2d 626, 628 (Ct. App. 1995).

[10]  S.C. Code Ann. § 44-48-80(B)(3) (Supp. 2006).

[11]  S.C. Code Ann. § 44-48-90 (Supp. 2006).

[12]  See McEachern v. Black, 329 S.C. 642, 651, 496 S.E.2d 659, 663 (Ct. App. 1998); see also  Collins v. Sigmon, 299 S.C. 464, 467, 385 S.E.2d 835, 837 (1989) (stating when an action is dismissed without prejudice, a plaintiff can reassert the same causes of action by curing defects that led to the dismissal).

[13]  S.C. Code Ann. § 44-48-30(1) (Supp. 2006).   

[14]  S.C. Code Ann. § 44-48-30(3).   

[15]  S.C. Code Ann. § 44-48-30(9).

[16]  See SC. Code Ann. § 44-48-30 (2)(b).