Staet v. Norris

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

The State,       
Respondent,

v.

Carolyn D. Norris,       
Appellant.

Appeal From Anderson County

J. C. Buddy Nicholson, Jr., Circuit
Court Judge

 Opinion No. 2003-UP-81

Submitted November 20, 2002 - Filed
January 29, 2003  

AFFIRMED IN PART; REVERSED IN PART

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

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

PER CURIAM:  Carolyn D. Norris appeals the
revocation of her probation, arguing the circuit court erred in revoking her
probation on three charges for which she had never received probationary sentences. 
We affirm in part and reverse in part. [1]

FACTS/PROCEDURAL HISTORY

Norris pled guilty to three counts of forgery and
one count of driving under suspension (DUS).  The court sentenced her as follows:

Forgery indictment 99-GS-04-2469
10 years suspended
upon service of months
with 3 years probation

Forgery indictment
99-GS-04-2467
18 months concurrent

Forgery indictment
99-GS-04-2468
18 months concurrent

DUS indictment 00-GS-04-333
3 months concurrent

Norris served the active portion of her
suspended sentence on 99-GS-04-2469 and thus also completed her sentences on
the remaining charges.  After her release from prison, Norris was arrested,
convicted, and sentenced to 30 days for receiving stolen goods.  She was then
served with an arrest warrant alleging she violated her probation by being convicted,
failing to notify her probation agent of her arrest, being in arrears on her
restitution and fees, and failing to follow her probation agent’s advice. 

At Norris’ revocation hearing, the court found
she willfully violated her probation.  The court reinstated 6 years of her original
10 year sentence on indictment 99-GS-04-2469 and continued her on probation
with a condition that she attend the restitution center and that her probation
be terminated upon full payment of her restitution.  The court issued a written
form order to this effect, but also issued three additional orders purporting
to revoke Norris’ suspended sentences on her other original charges. 

LAW/ANALYSIS

Norris first argues the circuit court lacked subject matter
jurisdiction to issue probation revocation orders on three charges for which
she never received probationary sentences.  We agree.

South Carolina Code Annotated Section 24-21-450
(Supp. 2002) permits issuance of an arrest warrant against a defendant for violating
probation or suspended sentence conditions “[a]t any time during the period
of probation or suspension of sentence.”  Our courts have held the failure to
comply with the warrant procedures established by section 24-21-450 deprives
the court of subject matter jurisdiction.  See State v. Richburg,
304 S.C. 162, 164-65, 403 S.E.2d 315, 317 (1991).  However, the challenged orders
in this case purport to revoke suspended sentences that were never imposed. 
Norris did not receive probation or suspended sentences on any of these charges. 
Furthermore, as the State concedes, at the time of the hearing she had completed
service of her sentence on each charge in question.  Thus the challenged orders
are nullities ab initio. 

Norris next contends she is entitled to reconsideration
of her probation revocation on the forgery count for which she received a suspended
and probationary sentence because the court was confused.  This argument was
not raised to the circuit court at the revocation hearing or in a motion for
reconsideration and is therefore not preserved.  State v. Perez, 334
S.C. 563, 565-66, 514 S.E.2d 754, 755 (1999).

AFFIRMED IN PART; REVERSED IN PART.

CONNOR, STILWELL, and HOWARD, JJ.,
concur.

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