State v. Floyd
| Decision Date | 04 April 2007 |
| Docket Number | 2007-UP-155 |
| Parties | The State, Respondent, v. Danny L. Floyd, Appellant. v. |
| Court | South Carolina Court of Appeals |
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.
Submitted April 2, 2007
Appeal From York County John C. Hayes, III, Circuit Court Judge
Chief Attorney Joseph L. Savitz, III, of Appellate Defense, of Columbia, for Appellant.
J Benjamin Aplin, of Department of Probation, Parole and Pardon, of Columbia, for Respondent.
Danny Leland Floyd appeals the revocation of his probation. He argues the proceeding against him was invalid because the probation agent who presented the state's case at his probation revocation hearing was not an attorney and therefore engaged in the unauthorized practice of law. We affirm. [1]
On March 13, 2003 a grand jury indicted Danny Leland Floyd for receiving stolen goods and possession of crack cocaine. Additionally, he was charged with possession of the Schedule IV drug Clonazepam, ” possession of the Schedule IV drug Xanax, ” and possession of marijuana. On May 22 2003 Floyd waived presentment to the grand jury on the Schedule IV drug and marijuana charges, pled guilty as charged, and was sentenced as follows: five years imprisonment suspended upon the service of three years imprisonment and three years probation for possession of crack cocaine-2nd offence; five years consecutive imprisonment suspended upon the service of three years probation for receiving stolen goods over $1, 000; one year concurrent imprisonment for possession of Schedule IV drug (Clonazepam)-3rd offense; one year concurrent imprisonment for possession of Schedule IV drug (Xanax)-3rd offense; one year concurrent imprisonment for possession of marijuana-3rd offense.
On November 1, 2004, Floyd satisfied his three year term of incarceration and began serving probation. Four months later on March 2, 2005, he was charged with violating the conditions of his probation in the following respects:
Fail to follow the advice and instructions of probation agent; Fail to report to probation office as directed, last reported on 11/16/04; Fail to refrain from the use of controlled substances by admitting on 11/16/04 to smoking marijuana laced with crack cocaine; fail to attend Narcotics Anonymous weekly as directed by agent; Fail to pay court ordered restitution, being in arrears $190.00 at time of warrant, Fail to pay court ordered surcharges; Fail to pay supervision fee, being in arrears $160.00 at the time of warrant. Such actions constitute the violation of sections 1, 3, 7, 9, 10, 11 and Special Conditions.
Floyd's probation agent, Wolfgang Rivas, issued and served a probation violation warrant in April 2005. On August 29 2005, Floyd appeared at his probation violation hearing, where he was represented by counsel. Agent Rivas presented Floyd's violations on behalf of the State. Floyd conceded that he had violated the conditions of his probation. The judge revoked his probation and ordered Floyd to serve the remainder of his five year prison sentence.
An appellate 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, 470 S.E.2d 380 (Ct. App. 1996); see also State v. White, 218 S.C. 130, 135, 61 S.E.2d 754 (1950) (). The decision to revoke probation is addressed to the discretion of the circuit judge.” State v. Lee, 350 S.C. 125, 129, 564 S.E.2d 372, 374 (Ct. App. 2002); accord White, 218 S.C. at 134-35, 61 S.E.2d at 756; State v. Proctor, 345 S.C. 299, 546 S.E.2d 673 (Ct. App. 2001); State v. Hamilton, 333 S.C. 642, 511 S.E.2d 94 (Ct. App. 1999). A reviewing court will only reverse this determination when it is based on an error of law or a lack of supporting evidence renders it arbitrary or capricious.” Lee, 350 S.C. at 129, 564 S.E.2d at 374; accord Proctor, 345 S.C. at 301, 546 S.E.2d at 674. Our Supreme Court has instructed that the circuit court has expansive discretionary authority in dealing with guilty persons who are in a probationary status. Shannon v. Young, 272 S.C. 61, 248 S.E.2d 914 (1978).
Does the filing of a petition to revoke probation and the presentation of the State's case by a probation agent (a non-lawyer) in a probation violation hearing constitute the unauthorized practice of law?
Floyd contends the circuit court erred by permitting a non-lawyer probation agent to present the State's case for revoking his probation because this appearance constitutes the unauthorized practice of law. We disagree.
Initially we note this argument may not be preserved for appellate review, as it was neither raised before nor ruled upon by the probation revocation judge. See State v. Hamilton, 333 S.C. 642, 648, 511 S.E.2d 94, 96 (Ct. App. 1999) (). At the probation revocation hearing, Floyd never challenged the propriety of the probation agent presenting the violations on behalf of the State and never complained that the agent was not a licensed attorney. Instead, he simply admitted the charged probation violations and attempted to convince the court not to revoke his probation.
Because of the multitudinous probation revocation hearings held in South Carolina on a daily basis, the issue posited by this appeal is germane and felicitous to the functional operation of the judicial system. Adverting to the merits of the case, we address Floyd's argument.
The South Carolina Constitution authorizes our Supreme Court to regulate the practice of law in this state. S.C. Const. art. V, § 4; see also S.C. Code Ann. § 40-5-10 (2001). The Court has consistently refrained from adopting a specific rule to define the practice of law. See In re Unauthorized Practice of Law Rules, 309 S.C. 304, 305, 422 S.E.2d 123, 124 (1992) (). Instead, the definition of what constitutes the practice of law turns on the facts of each individual case. Id. The generally understood definition of the practice of law ‘embraces the preparation of pleadings, and other papers incident to actions and special proceedings, and the management of such actions and proceedings on behalf of clients before judges and courts.' ” State v. Despain, 319 S.C. 317, 319, 460 S.E.2d 576, 577 (1995) (quoting In re Duncan, 83 S.C. 186, 189, 65 S.E. 210, 211 (1909)). Nonetheless, the practice of law is not confined to litigation, but extends to activities in other fields which entail specialized legal knowledge and ability.” State v. Buyers Service Co., Inc., 292 S.C. 426, 430, 357 S.E.2d 15, 17 (1987).
The duties and powers of probation agents are set forth in the South Carolina Code:
A probation agent must investigate all cases referred to him for investigation by the judges or director and report in writing.... He must keep informed concerning the conduct and condition of each person on probation, parole, or community supervision under his supervision by visiting, requiring reports, and in other ways, and must report in writing as often as the court or director may require.... A probation agent must keep detailed records of his work, make reports in writing, and perform other duties as the director may require.... In the performance of his duties of probation, parole, community supervision, and investigation, he is regarded as the official representative of the court, the department and the board.
S.C. Code Ann. § 24-21-280 (2007).
During the period of probation, the court or the probation agent 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. Id. After the arrest, the court is required to bring the defendant before it to determine whether a violation occurred and if so, whether to revoke probation and require the defendant to serve all or a portion of the suspended sentence. S.C. Code Ann. Ann § 24-21-460 (2007).
In Leverette v. State, 546 S.E.2d 63 (Ga.App. 2001), the Georgia Court of Appeals addressed a factual situation and argument analogous to the case sub judice. In Leverette, the petitioner's probation was revoked for possession of cocaine. In this case, the petition for revocation was signed and submitted to the court by a probation officer, a non-lawyer. The defendant appealed, alleging the probation officer had participated in the unauthorized practice of law and therefore his revocation of probation was void ab initio. The court disagreed.
The Leverette court noted the probation officer was a public official employed by the State who was assigned to handle the defendant's case:
[W]e need not open the floodgates of litigation because Leverette's argument ignores the fact that the probation officer is a public official employed by the State of Georgia and, in this instance, was assigned...
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