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2008-UP-010 - 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Unpublished Opinion No. 2008-UP-010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.