State v. Rutledge

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

The State, Respondent,

v.

Harold David
Rutledge, Appellant.

Appeal From York County

 John C. Hayes, III, Circuit Court Judge

Unpublished Opinion
No. 2008-UP-010

Submitted January 1, 2008 – Filed January
9, 2008

REVERSED and REMANDED

Appellate Defender Eleanor Duffy Cleary, of Columbia, for
Appellant.

Assistant Chief Legal Counsel John Benjamin Aplin, of Columbia, for Respondent.

PER CURIAM: 
This is an appeal from a probation revocation.  We reverse and remand for a new probation revocation hearing. [1]

Harold Rutledge
contends the hearing court erred in finding that he waived his right to
counsel.  Rutledge properly raises this issue for the first time on appeal.  See State v. Rocheville, 310 S.C. 20, 25 n.4, 425 S.E.2d 32, 35 n.4 (1993)
(stating an exception to the contemporaneous objection rule exists when the
record lacks evidence of a knowing and intelligent waiver of the right to
counsel because a pro se defendant should not be expected to
raise the issue without assistance of counsel); State v. White, 305 S.C.
455, 456, 409 S.E.2d 397, 397 (1991) (holding because the defendant appeared pro se at his sentencing hearing, the first time the defendant could raise
the issue of lack of knowing and intelligent waiver of right to counsel was on
appeal).

The
record before us falls far short of establishing that Rutledge waived his right
to counsel knowingly and intelligently and with the required warning regarding
dangers of self-representation.  See Huckaby v. State, 305 S.C.
331, 335, 408 S.E.2d 242, 244 (1991) (stating a defendant in a probation
revocation hearing must be advised of his right to counsel, the hearing court
must determine if a defendant’s request to proceed pro se constituted a knowing and intelligent waiver, and the hearing court must make
defendant aware of the dangers of self-representation).  Further, the State
concedes Rutledge was not warned against the dangers of self-representation and
Rutledge did not affirmatively waive his right to counsel.

We
reverse the circuit court’s determination that Rutledge waived his right to
counsel and remand the case for a new probation revocation hearing.

REVERSED
AND REMANDED.

HEARN, C.J., and KITTREDGE and THOMAS, JJ., concur.

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