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2010-UP-496 - State v. Amburgey

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

The State, Respondent,

v.

Brian Amburgey, Appellant.


Appeal From Spartanburg County
 Gordon G. Cooper, Circuit Court Judge


Unpublished Opinion No.  2010-UP-496
Submitted November 1, 2010 – Filed November 8, 2010


REVERSED


Chief Appellate Defender Robert M. Dudek, of Columbia, for Appellant.

J. Benjamin Aplin, of Columbia, for Respondent.

PER CURIAM:  Brian Amburgey appeals the revocation of thirty days of his probationary sentence, arguing the circuit court erred in finding he had impermissible contact with a child under the age of eighteen.  We reverse[1] because the evidence adduced at the hearing does not support a finding that Amburgey violated a condition of his probation. 

"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. Archie, 322 S.C. 135, 136-37, 470 S.E.2d 380, 381 (Ct. App. 1996).  In a probation revocation matter, the circuit court may abuse its discretion by entering an arbitrary judgment, allowing its decision to be controlled by an error of law, or failing to consider the particular circumstances of the case and whether the evidence supports its decision.  State v. White, 218 S.C. 130, 135-37, 61 S.E.2d 754, 756-59 (1950).  Appellate courts are bound by the circuit court's factual findings unless the findings are clearly erroneous.  State v. Baccus, 367 S.C. 41, 48, 625 S.E.2d 216, 220 (2006). 

Amburgey's probation was conditioned upon his "not hav[ing] contact with a person under the age of 18" who was not a male blood-relative.  This condition specifically addressed incidental contact: "If I have incidental contact with any child, I will be civil and courteous and immediately remove myself from the situation.  I will discuss the contact at my next treatment session and will immediately report this contact to my agent."  The record supports Amburgey's contention that he was unaware the child was in his home and therefore was unable to exercise control over his proximity to the child.  The child's mother testified her visit with her sister lasted approximately ten minutes.  Both the child's mother and the probation agent testified Amburgey entered the room where the child stood only after the probation agent arrived.  Until that time, the child's mother stated, Amburgey remained in his bedroom, and she and her child remained in the living room.  Accordingly, we find no evidence supports the circuit court's finding that Amburgey violated the terms of his probation.  No evidence indicates Amburgey invited the child or his mother to his residence or even knew they were coming.  No evidence indicated Amburgey's girlfriend was aware her sister and the child would come to the home.  No evidence indicated the child's mother was aware of Amburgey's restriction before his probation agent informed her.  Furthermore, the child's presence in Amburgey's residence was "really the only violation" the probation agent found.  Consequently, we find the circuit court erred in revoking thirty days of Amburgey's probation. 

REVERSED.

HUFF, KONDUROS, and LOCKEMY, JJ., concur.


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