State v. Ellis, 27127.

• Decision Date: 16 May 2012
• Docket Number: No. 27127.,27127.
• Parties: The STATE, Respondent, v. Joey ELLIS, Appellant.
• Court: South Carolina Supreme Court

397 S.C. 576

726 S.E.2d 5

The STATE, Respondent,

v.Joey ELLIS, Appellant.

No. 27127.

Supreme Court of South Carolina.

Heard Feb. 7, 2012.

Decided May 16, 2012.

Appellate Defender Breen Stevens, of South Carolina Commission on Indigent Defense, of Columbia, for Appellant.

John Benjamin Aplin, of South Carolina Department of Probation, Parole, and Pardon Services, of Columbia, for Respondent.

Chief Justice TOAL.

Joey Ellis (Appellant) appeals the circuit court order revoking and terminating his probation. Appellant argues that the circuit court lacked subject matter jurisdiction because the probation violation warrant was not issued during the term of his probation. We disagree.

FACTUAL/PROCEDURAL HISTORY

On March 4, 1997, Appellant pled guilty to burglary in the second degree, and attemptedburglary in the second degree.¹The court sentenced Appellant to an indeterminate sentence not to exceed six years pursuant to the Youthful Offender Act (YOA) for the burglary in the second degree conviction. The court also sentenced Appellant to fifteen years' imprisonment, suspended upon the service of five years' probation, for the attempted burglary in the second degree conviction. Appellant was released from YOA custody and placed on conditional release supervision in December 1997.² On October 19, 2004, Appellant's YOA conditional release supervision ended, and the Department of Probation, Parole, and Pardon Services (DPPPS) began supervising Appellant on his five year term of probation.

On February 15, 2008, DPPPS issued a citation alleging Appellant violated his probation in the following respects:

[Appellant] has willfully violated conditions 1, 7, 9, 10 and special conditions of his probationary sentence in the following particulars; By [sic] failing to report for an office visit since 11/08/07 having missed his visits scheduled for 12/12/07, 01/02/08, 01/09/08 and 02/06/08. By being $70.00 in arrears on supervision fees; By [sic] being $2,131.00 in arrears on court ordered restitution leaving an unpaid balance of $3,904.19.

On April 28, 2008, DPPPS issued an arrest warrant charging Appellant with an additional violation, “The offender has failed to follow the advice of his supervising agent in that he failed to report for his General Sessions Court hearing on April 24, 2008 at 2:00 p.m. as instructed to do so in writing on February 15, 2008.”

On October 20, 2008, Appellant appeared in court and argued that he could not have violated the conditions of his probation as alleged, because the term of probation had already expired pursuant to the sentence imposed by the sentencing judge in 1997. According to Appellant, his probationfor the second degree burglary charge should have started upon commencement of his YOA conditional release in December 1997 and not the conclusion of the YOA sentence in October 2004. In other words, Appellant asserted that the YOA sentence and his term of probation ran concurrently. The court disagreed, finding that Appellant was still on probation and subject to the charged violations. The court then terminated Appellant's probation and re-instated five years of the suspended sentence. Appellant filed a timely notice of intent to appeal this probation revocation. This Court certified the appeal pursuant to Rule 204(b), SCACR.

ISSUE PRESENTED

Did the circuit court err in revoking Appellant's probation?

STANDARD OF REVIEW

The decision to revoke probation is addressed to the discretion of the circuit court judge. State v. White, 218 S.C. 130, 135, 61 S.E.2d 754, 756 (1950). This Court's authority to review the findings of a lower court on this issue is confined to the correction of errors of law, unless it appears that the action of the circuit court amounted to a manifest abuse of discretion. Id.

LAW/ANALYSIS

Appellant argues that the circuit court erred as a matter of law in revoking his probation because the probation violation warrant was not issued during Appellant's term of probation, and thus the circuit court was without subject matter jurisdiction. We disagree.

A trial judge may impose a term of years but provide for a suspension of a part of the imprisonment, and place the defendant on probation after a designated portion of the term of imprisonment is served. Thompson v. S.C. Dep't of Pub. Safety, 335 S.C. 52, 55, 515 S.E.2d 761, 763 (1999). “Probation, a suspension of the period of incarceration, is clearly part of a criminal defendant's ‘term of imprisonment,’ as is actual incarceration, parole, and the suspended portion of a sentence.” Id. (citation omitted) (emphasis added). The term parole means a conditional release from imprisonment and does not suspend the running of the prisoner's sentence. Crooks v. Sanders, Superintendent of State Penitentiary, 123 S.C. 28, 34, 115 S.E. 760, 762 (1922).

In Thompson v. South Carolina Department of Public Safety, 335 S.C. 52, 515 S.E.2d 761 (1999), this Court addressed whether the phrase “term of imprisonment” meant only the actual period of incarceration. The defendant, John Thompson, was convicted of three counts of felony DUI and received two consecutive YOA sentences not to exceed six years, and a concurrent ten year sentence suspended upon service of five years' probation. Id. at 54, 515 S.E.2d at 762. The probationary sentence was to begin following service of the YOA sentences. Id. at 54–55, 515 S.E.2d at 762. On May, 18, 1993, Thompson was released from prison and began serving his five year probationary sentence. Id. DPPPS notified Thompson that his license would remain suspended until May 28, 2007—the five year probationary period, followed by three consecutive three year statutory suspensions. Id.

The felony DUI statute provides in pertinent part, “The Department of Motor Vehicles must suspend the driver's license of any person who is convicted or receives sentence upon a plea of guilty or nolo contendere pursuant to the [felony DUI] section for a period to include any term of imprisonment plus three years.” S.C.Code Ann. § 56–5–2945 (2006) (emphasis added). Thompson brought a declaratory judgment action seeking to construe the phrase “term of imprisonment.” Thompson, 335 S.C. at 55, 515 S.E.2d at 762. The court of appeals held that the term meant only the actual period of incarceration, and this Court reversed. Id.

This Court explained the relationship between incarceration, probation, and parole:

In sentencing a trial judge may impose a term of years but provide for a suspension of a part of such imprisonment, and the placing of a defendant on probation after serving a designated portion of the term of imprisonment.... Probation, a suspension of the period of incarceration, is clearly part of a criminal defendant's term of imprisonment, as is actual incarceration, parole, and the suspended portion of a sentence, or supervised furlough.

Id. at 55–56, 515 S.E.2d at 763 (citation omitted) (emphasis added).

In Crooks v. Sanders, Superintendent of State Penitentiary, 123 S.C. 28, 115 S.E. 760 (1922), this Court cited with approval a definition of parole adopted by the Supreme Court of Indiana.

During that time he was out on parole he was not a free citizen; he was, as we have seen, still a prisoner, and notwithstanding his prison bounds were not so contracted as the prison bounds of an insolvent debtor, at the time our laws recognized imprisonment for debt, still he was given prison bounds ... All the consequences of the judgment were upon him, except that he had leave of absence from prison.

Id. at 36, 115 S.E. at 763 (citing Woodward v. Murdock, 124 Ind. 439, 24 N.E. 1047, 1048 (1890)) (emphasis added).

In 1997 Appellant was sentenced under the YOA to an indeterminate sentence not to exceed six years, and on December 19, 1997, he was released on YOA parole. The sentencing judge's order simply stated, “Probation to begin after sentence now serving.” Based on the plain language of the order, and pursuant to Thompson and Crooks, Appellant's sentence ended following the conclusion of his parole and entire YOA sentence on October 19, 2004. The probation term set to begin following a “sentence now serving” began at that time and would end no earlier than October 19, 2009. DPPPS issued a citation alleging Appellant violated his probation on February 15, 2008, followed by a probation revocation warrant on April 28, 2008. Both of these documents granted the circuit court the authority to revoke Appellant's probation.³,⁴See State v. Felder, 313 S.C. 55, 57, 437 S.E.2d 42, 43 (1993) (“ South Carolina Code Ann. § 24–21–300 (1989), however, permits the use of a citation and affidavit in lieu of a warrant.”).

Appellant urges this Court to adopt the reasoning of State v. Lee, 350 S.C. 125, 564 S.E.2d 372 (Ct.App.2002). In that case, the court of appeals ruled that a circuit court had validly placed a defendant on both probation and parole. The defendant, Lee, was sentenced to ten years' imprisonment, suspended upon the service of five years' probation. Id. at 127, 564 S.E.2d at 373. The judge ordered Lee's probation to begin “upon ... release from sentence now serving, to include any early release program/supervision.” Id. Lee was later paroled,and began his probation that same day. Id. at 128, 564 S.E.2d at 374. Subsequently, Lee was charged with violating various conditions of his parole and probation. Id. Following a hearing, the circuit court terminated Lee's probation and revoked three years of the original ten year suspended sentence. Id.

Lee appealed the decision, and argued that the circuit court lacked authority to place a defendant on both probation and parole at the same time. Id. at 132, 564 S.E.2d at 376. According to the court of appeals, the phrase “release from sentence now serving, to include any early release program/supervision,” meant that Lee's probation would begin when he was released from incarceration. Id. at 133, 564 S.E.2d at 376. Thus, his probation and parole ran simultaneously. Appellant seeks to draw a...