State v. Dial

THIS OPINION HAS NO
PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY
PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

The State, Respondent,

v.

Jerry Dial, Appellant.

Appeal From Lexington County

R. Knox McMahon, Circuit Court Judge

Unpublished Opinion No.  2011-UP-347

Submitted June 1, 2011 – Filed June 29,
2011

AFFIRMED

David K. Allen and Robert T. Williams, Sr.,
both of Lexington, for Appellant.

J. Benjamin Aplin, of Columbia, for
Respondent.

PER CURIAM: Jerry Dial appeals the circuit court's order revoking his probation.  We affirm.[1]   

Dial first argues
the circuit court erred because the State did not provide sufficient evidence
to show a violation of probation.  We disagree.

The State provided evidence that Dial had actual or constructive
possession of pornographic materials, a violation of the Standard Sex Offender
Conditions signed by Dial upon his release.  Specifically, a probation agent
testified that she observed Dial leaving the room where the materials were
later discovered.  Dial also admitted he knew the materials were in the room.  We
hold the State provided sufficient evidence for the circuit court to revoke
probation.  See State
v. Williamson, 356 S.C.
507, 510, 589 S.E.2d 787, 788 (Ct. App. 2003) ("[T]he authority of the
[circuit] court to revoke [probation] may not be capriciously or arbitrarily
exercised, but should always be predicated upon an evidentiary showing of fact
tending to establish violation of the conditions."); State v. Hamilton,
333 S.C. 642, 647, 511 S.E.2d 94, 96 (Ct. App. 1999) (holding an appellate
"court's authority to review such a decision is confined to correcting errors
of law unless the lack of legal or evidentiary basis indicates the circuit
judge's decision was arbitrary and capricious."). 

Dial's argument
that his Fifth Amendment rights were violated is not preserved for our review.  See State v. Bryant, 383 S.C. 410, 418, 680 S.E.2d 11, 15 (Ct.
App. 2009) (holding that an issue not raised to the circuit court revoking
probation was not preserved for review). 

AFFIRMED.

FEW, C.J.,
HUFF, J., and GOOLSBY, A.J., concur.

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