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2008-UP-294 - State v. Hawkins

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.

Robert Anthony Hawkins, Appellant.


Appeal From Anderson County
 Paul M. Burch, Circuit Court Judge


Unpublished Opinion No.  2008-UP-294
Submitted June 1, 2008 – Filed June 5, 2008


AFFIRMED


Chief Appellate Defender Joseph L. Savitz, III , of Columbia, for Appellant.

Deputy Director Teresa A. Knox, Tommy Evans, Jr. and J. Benjamin Aplin of the South Carolina Dept. of Probation, Parole and Pardon Services, all of Columbia, for Respondent.

PER CURIAM:  Appellant, Robert Anthony Hawkins, appeals the partial revocation of his probation, asserting there was an insufficient evidentiary basis to establish that he violated the conditions of his probation.  We affirm.[1]

FACTUAL/PROCEDURAL BACKGROUND

Hawkins pled guilty in September 2003 to possession of a stolen vehicle and being a habitual traffic offender.  He was sentenced to concurrent terms of ten years suspended upon service of eighteen months with five years of probation for the vehicle charge, and five years suspended upon service of eighteen months with five years of probation on the habitual offender charge.  A probation arrest warrant was issued on September 12, 2006, charging Hawkins with failing to follow the advice and instructions of his supervising agent by failing to complete intake as instructed, as Hawkins left prior to completion of intake and did not return.  It further charged Hawkins changed addresses without consent from his agent, failed to notify his agent of his whereabouts, thereby absconding from supervision, and failed to pay his supervision fees, being $160.00 in arrears at that time. 

A probation revocation hearing was held on October 19, 2006, at which time Hawkins informed the court he did not agree with the violations.  The probation agent stated Hawkins reported for his initial intake after being released on a previous revocation, but that he left before completing his initial intake.  His agent followed up by trying to confirm his residence and whereabouts, but was not able to do so.  Hawkins maintained that on September 5, 2006, he reported, signed in, and sat in the auditorium where he waited from 9:15 until 1:00.  He stated he had a job interview scheduled for 2:00, so he had to leave.  He stated he had been jailed on this matter since September 25, 2006. 

As to the alleged arrearage in fees, Hawkins stated that he had “only been out [of jail] four days” from his most recent revocation service, and since the fee was $40 a month, he could not already be in arrears in the amount of $160.  When asked by the court to explain the arrearage figures, the probation agent stated, “the only thing I can think is on his revocations, he still had arrearages,” and that when Hawkins went to jail for the prior revocation, “those arrearages followed him.”  Hawkins’ attorney argued Hawkins was previously revoked for having an arrearage, and the State was attempting to show a violation for the same arrearage on which he had already had his probation revoked.  The agent then stated they were not charging him with arrearage, but with the fact that Hawkins showed up for his intake but decided to leave and had no further contact, and that the agent was thereafter unable to track him down at a current residence. 

The circuit court found Hawkins should not have left the auditorium to go check on a job.  It then revoked twenty-five days of Hawkins’ suspended sentences on both charges, with credit for time served of twenty-five days. 

STANDARD OF REVIEW

“The determination of whether to revoke probation in whole or part rests within the sound discretion of the trial court.”  State v. Allen, 370 S.C. 88, 94, 634 S.E.2d 653, 655 (2006).  This court will not reverse the trial court’s decision unless that court abused its discretion.  Id.  

An abuse of discretion occurs when the trial court’s ruling is based upon an error of law, such as application of the wrong legal principle; or, when based upon factual conclusions, the ruling is without evidentiary support; or, when the trial court is vested with discretion, but the ruling reveals no discretion was exercised; or when the ruling does not fall within the range of permissible decisions applicable in a particular case, such that it may be deemed arbitrary and capricious.

Id.

LAW/ANALYSIS

On appeal, Hawkins asserts the circuit court committed reversible error in revoking his probation because the probation agent failed to provide a sufficient evidentiary basis to establish he violated the conditions of his probation.  We disagree.

In deciding whether to revoke probation, “[t]he trial court must determine whether the State has presented sufficient evidence to establish that a probationer has violated the conditions of his probation.”  Allen, 370 S.C. at 94, 634 S.E.2d at 655.

Probation is a matter of grace; revocation is the means to enforce the conditions of probation.  However, the authority of the revoking court should always be predicated upon an evidentiary showing of fact tending to establish a violation of the conditions.  Thus, before revoking probation, the circuit judge must determine if there is sufficient evidence to establish that the probationer has violated his probation conditions. 

State v. Hamilton, 333 S.C. 642, 648-49, 511 S.E.2d 94, 97 (Ct. App. 1999) (citations omitted).

Hawkins points to the court’s observation that Hawkins’ case was “too complicated,” as evidence of a lack of evidentiary support that Hawkins violated the terms of his probation.  However, a review of the record indicates the court was speaking to the confusion over the monetary figures discussed regarding possible arrearage stating, “We’ve got to have this all checked out,” and “I want a full audit of his money situation.”  Hawkins admitted he failed to stay to complete his initial probation intake.  Further, he offered no explanation for his failure to notify his agent of an address change and his whereabouts. Thus, there is sufficient evidence to establish that he violated his probation conditions.

For the foregoing reason, the circuit court’s ruling is

AFFIRMED.

ANDERSON, HUFF, and KITTREDGE, JJ., concur.


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