Lovell v. State

• Decision Date: 04 February 1953
• Docket Number: No. 16711,16711
• Citation: 74 S.E.2d 570,223 S.C. 112
• Court: South Carolina Supreme Court
• Parties: LOVELL v. STATE.

Page 570

74 S.E.2d 570

223 S.C. 112

LOVELL v. STATE.

No. 16711.

Supreme Court of South Carolina.

Feb. 4, 1953.

A. Frank Lever, Jr., Lexington, for appellant.

T.C. Callison, Atty.Gen., and Daniel R. McLeod, Asst.Atty.Gen., for respondent.

OXNER, Justice.

This is an appeal from an order revoking a suspended sentence.

On April 11, 1945, appellant pleaded guilty in the Court of General Sessions for Richland County to a charge of aggravated assault and battery and carrying a concealed weapon and was sentenced to imprisonment for a term of two years. The execution of this sentence was suspended and he was placed on probation for a period of five years. In January, 1950, he was arrested in North Carolina for attempting to blow up a radio tower. He gave bond and returned to South Carolina. On March 4, 1950, a warrant was issued by the South Carolina Probation and Parole Board, charging appellant with a violation of the conditions of probation. He was arrested and placed in the Richland County jail where he remained until March 20, 1950, at which time he was removed to North Carolina to answer the charge pending there. He pleaded guilty in North Carolina to a charge of conspiracy to damage real property and on March 20, 1950, was sentenced to serve 18 to 24 months. On April 11, 1950, while appellant was serving this sentence, an order was issued by the Richland County Court of General Sessions, on an ex parte application, revoking the suspended sentence imposed in that court.

On April 20, 1951, appellant, having then completed his sentence in North Carolina, was released and immediately arrested by the South Carolina officers and removed to the South Carolina penitentiary. On October 25, 1951, he filed a petition in the County Court of Richland County for a writ of habeas corpus in which he alleged that he was placed in the state penitentiary without a hearing and at a time when his probationary period had expired. The judge of that court on November 5, 1951, issued an order admitting him to bail in the sum of $500, conditioned on his appearance before the Court of General Sessions of Richland County to answer the charge that he had violated the terms of his probation. Thereafter a hearing was had in the Court of General Sessions, resulting in an order on April 21, 1952, revoking the suspended sentence and requiring appellant to serve the term of imprisonment of two years originally imposed, "less good behavior allowance as provided by statute, with defendant being given due credit for any portion of said sentence that has already been served in either the South Carolina penitentiary or on a county chaingang, said sentence to run from date of commitment after suspension has been revoked."

It seems to be conceded that in January, 1950, appellant violated the conditions of his probation by leaving the state without the permission of the Probation and Parole Board and by attempting to blow up a radio tower in Charlotte, North Carolina. It is his contention (1) that the order of revocation made on April 11, 1950, the last day of the probationary period, is invalid because issued on an ex parte application, without affording him an opportunity to be heard on the charge that the terms of his probation had been violated, and (2) that the Court was without jurisdiction to issue the order of revocation made on April 21, 1952, because the probationary period had expired two years previously.

The procedure for revocation of probation is contained in Sections 55-595 and 55-596 of the 1952 Code, the pertinent portions of which are as follows:

"At any time during the period of probation or suspension of sentence the court may issue or cause the issuing of a warrant and cause the defendant to be arrested for violating any of the conditions of probation or suspension of sentence. Any police officer or other officer with power of arrest, upon the request of the probation officer, may arrest a probationer. In case of an arrest the arresting officer shall have a written warrant from the probation officer setting forth that the probationer has, in his judgment, violated the conditions of probation and such statement shall be warrant for the detention of such probationer in the county jail or other appropriate place of detention, until such probationer can be brought before the judge of the court. Such probation officer shall forthwith report such arrest and detention to the judge of the court and submit in writing a report showing in what manner the probationer has violated his probation."

"Upon such arrest the court shall cause the defendant to be brought before it and may revoke the probation or suspension of sentence and shall proceed to deal with the case as if there had been no probation or suspension of sentence except that the circuit judge before whom such defendant may be so brought shall have the right, in his discretion, to require the defendant to serve all or a portion only of the sentence imposed. ***"

In section 55-594 it is provided: "Upon the satisfactory fulfilment of the conditions of probation or suspension of sentence the court shall by order duly entered discharge the defendant."

We have held that a probationer is entitled to a hearing on the question of revocation. State v. White, 218 S.C. 130, 61 S.E.2d 754; State v. Clough, 220 S.C. 390, 68 S.E.2d 329. The Federal Courts have reached a similar conclusion. Escoe v. Zerbst, Warden, 295 U.S. 490, 55 S.Ct. 818, 79 L.Ed. 1566.

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