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2007-UP-486 - State v. Moore

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.

Willie Michael Moore, Appellant.


Appeal From Lancaster County
 Kenneth G. Goode, Circuit Court Judge


Unpublished Opinion No. 2007-UP-486
Submitted October 1, 2007 – Filed October 15, 2007   


AFFIRMED


Appellate Defender Katherine H. Hudgins, of Columbia, for Appellant

John Benjamin Aplin, of Columbia, for Respondent.

PER CURIAM:  Willie Michael Moore appeals the revocation of his community supervision.  Moore argues the trial court erred in not specifically finding that his failure to comply with the requirements of home detention was willful.  We affirm.[1]

FACTS

On May 2, 2002, Moore was convicted of second degree arson and sentenced to ten years imprisonment, suspended upon the service of ninety days imprisonment and three years probation.  On February 13, 2003, the court revoked Moore’s probation, reinstated three years of his suspended sentence, and terminated his probation.  Moore was placed in the South Carolina Department of Probation, Parole, and Pardon Services’ (the Department’s) community supervision program (Program).

On August 3, 2005, Moore appeared before the court for a community supervision violation hearing.  The trial judge found Moore had willfully violated the terms of the Program but continued him in the Program.  On October 5, 2005, an arrest warrant was issued for Moore based on his alleged violations of the terms of the Program.  Specifically, the arrest warrant charged Moore with having failed to follow the advice and instructions of his agent, by confessing to having used cocaine subsequent to a failed drug test, by failing to pay $140 in supervision fees, and by violating the home detention provision of the Program.

On October 26, 2005, Moore appeared before the trial court for another community supervision violation hearing.  Moore’s counsel argued the State had not complied with the home detention provision of his probation.  The trial court revoked Moore’s community supervision and imposed a sentence of one year for violating the Program.  Moore appeals.

LAW/ANALYSIS

Moore argues his alleged violation of home detention was not willful because home detention was not imposed as part of the Program.  As such, Moore contends the violation of home detention cannot serve as a ground upon which his community supervision could be revoked.  We affirm.

Generally “a ‘no parole offense’ as defined in Section 24-13-100 must include . . . completion of a community supervision program . . . .”  S.C. Code Ann. § 24-21-560(A) (2007).  “The period of time a prisoner is required to participate in a community supervision program and the individual terms and conditions of a prisoner’s participation shall be at the discretion of the department based upon guidelines developed by the director.”  S.C. Code Ann. § 24-21-560(B) (2007).

“If the department determines that a prisoner has violated a term of the community supervision program and the community supervision should be revoked, a probation agent must initiate a proceeding in General Sessions Court.”  Id.  “If the court determines that a prisoner has wilfully violated a term or condition of the community supervision program, the court may impose any other terms or conditions considered appropriate and may continue the prisoner on community supervision, or the court may revoke the prisoner’s community supervision and impose a sentence of up to one year for violation of the community supervision program.”  S.C. Code Ann. § 24-21-560(C) (2007).

In Jackson v. State, 349 S.C. 62, 64, 562 S.E.2d 475, 475 (2002), our supreme court held “the Program serves essentially the same function for persons convicted of ‘no parole offenses’ as parole does for other inmates.”  “Probation is judicially-imposed at the time of sentencing: whether a violation of probationary terms has occurred, and if so, the consequences of such a violation, are matters for the courts.”  Duckson v. State, 355 S.C. 596, 598, 586 S.E.2d 576, 578 (2003).  “On the other hand, the Board of Probation, Parole, and Pardon Services determines both parole eligibility and revocations.”  Id.

“This Court will not disturb the Circuit Court’s decision to revoke probation unless the decision was influenced by an error of law, was without evidentiary support, or constituted an abuse of discretion.”  State v. Lee, 350 S.C. 125, 129, 564 S.E.2d 372, 374 (Ct. App. 2002).  “Probation is a matter of grace; revocation is the means to enforce the conditions of probation.”  State v. Hamilton, 333 S.C. 642, 648, 511 S.E.2d 94, 97 (Ct. App. 1999).  “[B]efore revoking probation, the circuit judge must determine if there is sufficient evidence to establish that the probationer has violated his probation conditions.”  Id.

In the order revoking Moore’s Program, the judge specifically found Moore “willfully violated terms” of the Program.  The order does not specifically address which of the alleged violations the court determined Moore committed willfully, however section 24-21-560(C) does not require the trial court to make such a finding.  Assuming arguendo that Moore’s violation of home detention was not willful, the record indicates Moore did not attempt to deny or explain the other allegations against him at the violation hearing, including his failed drug test and subsequent admission to his probation agent that he used cocaine.  We therefore find there is a sufficient factual basis to support the judge’s finding that Moore willfully violated at least one of the terms of his community supervised program.

AFFIRMED.

ANDERSON and THOMAS, JJ., and CURETON, A.J., concur.


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