State v. Spare
| Decision Date | 18 June 2007 |
| Docket Number | No. 4257.,4257. |
| Citation | 647 S.E.2d 706 |
| Court | South Carolina Court of Appeals |
| Parties | The STATE, Respondent, v. George SPARE, Appellant. |
v.
George SPARE, Appellant.
[647 S.E.2d 707]
Deputy Chief Attorney for Capital Appeals Robert M. Dudek, of Columbia, for appellant.
John Benjamin Aplin, of Columbia, for respondent.
BEATTY, J.:
George Spare appeals the revocation of his probation. He contends the circuit court judge erred in revoking his probation because the record established that he was making a bona fide effort to pay the court-ordered restitution. We vacate the revocation of Spare's probation and remand to the circuit court for proceedings consistent with the provisions of this opinion.1
On May 19, 2003, Spare pleaded guilty to breach of trust in an amount greater than $5,000. Circuit Court Judge Jackson Gregory sentenced Spare to ten years imprisonment, which was suspended upon five years probation and the payment of restitution in an amount to be calculated at a later date. After a restitution hearing was held on August 13, 2003, Judge Gregory ordered Spare to pay restitution in the amount of $34,475 to the victim, plus a mandatory 20 percent collection fee, resulting in a total restitution obligation of $41,370.
On May 12, 2004, Spare's probation agent served Spare with a financial probation citation, alleging that Spare was in arrears for his restitution. By order dated June 15, 2004, Judge Gregory continued Spare on probation but ordered him to enroll in the Restitution Center.
On September 12, 2005, Spare was again served with a financial probation citation for being $4,921 in arrears on restitution. On that date, the unpaid balance of the restitution was $40,362.75.
Circuit Court Judge Howard King held a probation revocation hearing on September 15, 2005. In addressing the court regarding the violation, Spare's probation agent stated that Spare had reported on time and had paid what he could toward the restitution. He added that Spare has "some financial situations that don't particularly allow him to pay the $753 a month that he has been ordered to." In terms of Spare's employment, Spare's counsel explained that Spare was unable to work for the government, his previous employer, or use his master's degree as a result of his criminal record, which included a drug conviction. Spare was employed with Cracker Barrel for forty-four hours per week. His check, however, had been garnished by the Internal Revenue Service for payment of back taxes and was also used to make payments to probation. He further stated that Spare does not own any real property, but instead, resides at a Motel 6 and eats all of his meals at his place of employment. Counsel emphasized that Spare had "not missed a payment other than ... not having the ability to make the required
payment a month." Counsel also pointed out that Spare paid less toward his financial obligation when he attended the Restitution Center for 181 days because he was making less money than he was currently earning at Cracker Barrel.
At the conclusion of the hearing, Judge King found that Spare had willfully violated the terms of his probation. As a result, Judge King revoked one year of Spare's sentence and ordered Spare to remain on probation and pay restitution when he was released from prison.
Spare appeals the revocation of his probation.
Spare argues the circuit court judge erred in revoking his probation when he was employed full time and paying restitution. He contends his failure to pay was not willful given he was making a bona fide effort to pay his court-ordered obligation.
The decision to revoke probation is addressed to the sound discretion of the trial court. State v. Allen, 370 S.C. 88, 94, 634 S.E.2d 653, 655 (2006); S.C.Code Ann. § 24-21-460 (2007). "This court's authority to review such a decision is confined to correcting errors of law unless the lack of a legal or evidentiary basis indicates the circuit judge's decision was arbitrary and capricious." State v. Hamilton, 333 S.C. 642, 647, 511 S.E.2d 94, 96 (Ct.App.1999).
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." Hamilton, 333 S.C. at 648, 511 S.E.2d at 97; see State v. White, 218 S.C. 130, 136, 61 S.E.2d 754, 756 (1950) ("While probation is a matter of grace, the probationer is entitled to fair treatment, and is not to be made the victim of whim or caprice."). "However, the authority of the revoking court...
To continue reading
Request your trial
-
Winbush v. State
...a willful violation.); State v. Dockery , 2010-Ohio-2365, 187 Ohio App.3d 798, 803, 933 N.E.2d 1155, 1159 ; State v. Spare , 374 S.C. 264, 269-70, 647 S.E.2d 706, 709 (Ct. App. 2007) ; Com. v. Dorsey , 328 Pa. Super. 241, 248-49, 476 A.2d 1308, 1312 (1984) ; State v. Haught , 179 W. Va. 557......
-
Winbush v. State
...a willful violation.); State v. Dockery, 2010-Ohio-2365, 187 Ohio ApP.3d 798, 803, 933 N.E.2d 1155, 1159; State v. Spare, 374 S.C. 264, 269-70, 647 S.E.2d 706, 709 (Ct. App. 2007); Com. v. Dorsey, 328 Pa. Super. 241, 248-49, 476 A.2d 1308, 1312 (1984); State v. Haught, 179 W. Va. 557, 561, ......
-
Rivers v. Alteri
...and reversed and remanded the matter back to the circuit court with instructions to make the findings required by State v. Spare, 647 S.E.2d 706 (S.C.Ct. App. 2007). See State v. Coker, 723 S.E.2d 619, 620 (S.C.Ct. App. 2012) [Holding that "the circuit court may not revoke probation solely ......
-
State v. Hicks
...finding that Hicks' failure to pay was willful. Accordingly, the State's argument is without merit. See State v. Spare, 374 S.C. 264, 268-69, 647 S.E.2d 706, 708 (Ct.App. 2007) (holding probation cannot be revoked solely for the failure to pay fines unless the trial court makes a finding on......