State v. Gregory ( 2003 )

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

The State, Respondent,

v.

Kenneth Gregory, Appellant.

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Appeal From York County
John C. Hayes, III, Circuit Court Judge

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Unpublished Opinion No.2003-UP-743
Submitted October 15, 2003 – Filed December 17, 2003

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AFFIRMED

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Stephen D. Schusterman, of Rock Hill, for Appellant

Deputy Director for Legal Services Teresa A. Knox, Legal Counsel Tommy Evans, Jr. and Legal Counsel J. Benjamin Aplin, all of Columbia, for Respondent.

PER CURIAM: Judge Hays revoked in full Appellant’s probation because Appellant was convicted of possessing marijuana and moved to Texas without informing his supervising agent. We affirm.

FACTS     

Appellant Kenneth Gregory was given a 15-year sentence on a burglary second degree (violent) charge in 1997. (R.10). That sentence was to be suspended on the service of four years, followed by three years of probation. (Id.). In October 1999, York County issued a warrant for Appellant, alleging that Appellant violated his probation when he failed to obey his supervising agent, absconded to Texas, was convicted of simple possession of marijuana, and failed to pay the ordered restitution and supervision fee. (R.6). Judge Hayes held a probation revocation hearing on January 6, 2003. (R.9). Appellant admitted that he possessed marijuana and that he had gone to Texas, but explained that it was because of his job. (R.11, 12). Appellant also admitted that he had not paid the supervision fee, but claimed that restitution was almost complete. (R.12). The judge revoked Appellant’s probation in full. (R.13).

ISSUE

Did the trial court err in revoking Appellant’s probation, violating his Fourteenth Amendment rights?

ANALYSIS

“Probation is a matter of grace; revocation is the means to enforce the conditions of probation.” State v. Hamilton, 333 S.C. 642, 648, 511 S.E.2d 94, 97 (Ct. App. 1999). That decision is within the discretion of the trial judge, but the judge “must [first] determine if there is sufficient evidence to establish that the probationer has violated his probation conditions.” Id.  

At the hearing, Appellant admitted that he had gone to Texas. He argues that he had informed his supervising agent, but the record does not reflect that Appellant asked for permission to leave South Carolina. Appellant also admitted that he was in possession of marijuana while on probation. Based on that evidence, the trial judge found that Appellant had not changed and continued to be in “pretty severe trouble.” [1] (R.13). That evidence was sufficient to find that Appellant had violated his probation, so the trial judge did not violate Appellant’s Fourteenth Amendment rights. There was no error. Counsel’s motion for relief is granted.

AFFIRMED.

HUFF, STILWELL AND BEATTY, JJ., concur.

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[1] Appellant correctly argues that the trial judge must first determine that a non-payment is willful before using it as revocation ground. See Hamilton, 333 S.C. at 649, 511 S.E.2d at 97. However, the trial judge in this case did not seem to rely on the non-payment to revoke Appellant’s probation.