State v. Bailey

(NEEDS CAPTION)

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

The State,       
Respondent,

v.

Charles W. Bailey       
Appellant.

 

Appeal From York County

John C. Hayes, III, Circuit Court Judge

Unpublished Opinion No. 2004-UP-114

Submitted December 23, 2003 – Filed
February 24, 2004

AFFIRMED IN PART, VACATED IN PART, and REMANDED 

Assistant Appellate Defender Tara S. Taggart, of Columbia,
for Appellant.

Deputy Director for Legal Services Teresa A. Knox, Legal Counsel
Tommy Evans, Jr. and Legal Counsel J. Benjamin Aplin, all of Columbia, for Respondent.

PER CURIAM:  Charles W. Bailey
was indicted for unlawful possession of prescription drugs and resisting arrest
and sentenced to an indeterminate sentence pursuant to Section 5(c) of the Youthful
Offender Act, suspended upon four-years probation and payment of restitution
in the amount of sixty dollars.  Subsequently, an arrest warrant was issued
against Bailey for violation of his probation.  Thereafter, the circuit court
revoked Bailey’s probation, modified the sentence from Youthful Offender to
an adult sentence of two-years imprisonment, and revoked the sentence in full. 
Bailey appeals, arguing the circuit court lacked subject matter jurisdiction
to revoke his probation as to his conviction for resisting arrest.  We affirm
in part, vacate in part, and remand.

FACTUAL/PROCEDURAL BACKGROUND

Bailey was sentenced to an indeterminate sentence
under Section 5(c) of the Youthful Offender Act, suspended upon four-years probation
and payment of restitution in the amount of sixty dollars.  The sentence was
given in disposition of two indictments, 96-GS-46-2868, charging Unlawful Possession
of Prescription Drugs, and 96-GS-46-2869, charging Resisting Arrest.

Subsequently, an arrest warrant was issued
against Bailey for violating his probation by: 1) failing to follow the advice
of a probation agent; 2) failing to gain approval of an agent before moving
out of state; 3) failing to maintain monetary obligations; and 4) failing to
contact a South Carolina agent for transfer to New Hampshire, thereby  absconding
from the jurisdiction.  The warrant referred solely to indictment 96-GS-46-2868. 
At the conclusion of the probation revocation hearing, the circuit court revoked
Bailey’s probation, modified the sentence from Youthful Offender to an adult
sentence of two-years imprisonment, and revoked the sentence in full.  The written
order revoking probation referred to the charges contained in both indictments. 
Bailey appeals.

LAW/ANALYSIS

Bailey argues the circuit court lacked
subject matter jurisdiction to revoke his probation on indictment 96-46-GS-2869
because the arrest warrant only referred to indictment 96-GS-46-2868.  We agree
and vacate the portion of the order referring to indictment 96-46-GS-2869. 

“Subject matter jurisdiction to revoke an individual’s
probation is conferred on the General Sessions Court by either the issuance
of a probation violation warrant or the issuance of a probation violation citation
and affidavit in lieu of a warrant.”  State v. Lee, 350 S.C. 125, 132,
564 S.E.2d 372, 376 (Ct. App. 2002); see State v. Felder, 313
S.C. 55, 56, 437 S.E.2d 42, 43 (1993) (“South Carolina Code Ann. § 24-21-450
(1989), [1] requires the issuance of a probation revocation
warrant before probation may be revoked.  If a warrant has not been issued,
the trial court lacks subject matter jurisdiction to revoke probation and any
attempted revocation is a nullity.  South Carolina Code Ann. § 24-21-300 (1989),
however, permits the use of a citation and affidavit in lieu of a warrant.”
(internal citations omitted)).

No evidence exists within the record indicating
an arrest warrant was issued charging Bailey with a violation of his probationary
sentence under indictment 96-46-GS-2869.  Furthermore, the State concedes no
arrest warrant was issued on that indictment. 

Thus, the circuit court lacked subject
matter jurisdiction to revoke Bailey’s probation as to indictment 96-46-GS-2869. 
See Lee, 350 S.C. at 132, 564 S.E.2d at 376.  Accordingly, the
modification and revocation of Bailey’s sentence given in connection with indictment
96-GS-46-2869 by Order of Judge John C. Hayes on November 4, 2002, is hereby
vacated. 

Based on the arrest warrant issued, the
circuit court had subject matter jurisdiction to revoke Bailey’s probation and
to modify his sentence as it related to indictment 96-GS-46-2868.  However,
instead of modifying Bailey’s sentence as it related to this one charge, the
circuit court modified the single sentence given for both indictments at trial. 
Thus, we remand for a determination of Bailey’s modified sentence relating only
to indictment 96-GS-46-2868.

CONCLUSION

For the foregoing reasons, the order of the circuit
court, revoking Bailey’s probation is

AFFIRMED IN PART, VACATED IN PART, and REMANDED. 

GOOLSBY, HOWARD and KITTREDGE, JJ.,
concurring.

[1] Although section 24-21-450 was amended in 1991, the amendment does
not affect our analysis of the issue of subject matter jurisdiction.