DocketNumber： 2003-UP-243
Filed Date： 4/1/2003
Status： Non-Precedential
Modified Date： 10/11/2024
THE STATE OF SOUTH CAROLINA
In The Court of Appeals
The State, Respondent,
v.
Janice Denise Brown, Appellant.
Appeal From York County
John C. Hayes, III, Circuit Court Judge
Unpublished Opinion No. 2003-UP-243
Submitted January 29, 2003 Filed April
1, 2003
AFFIRMED
Assistant Appellate Defender Aileen P. Clare, of Columbia, 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: In July 1998, Janice Denise Brown pled guilty to child neglect and was sentenced to ten years imprisonment, suspended upon service of five years probation. At a probation revocation hearing in November 2001, the trial judge revoked three years of Browns suspended sentence. Brown appeals.
FACTS
Brown was indicted for child neglect when, after giving birth to her daughter at the hospital, both she and the child tested positive for cocaine. Brown pled guilty. The trial judge attached several conditions to her sentence: (1) drug counseling, (2) remaining drug free, (3) random drug tests, and (4) thirty days PSE (public service employment). Brown did not file a direct appeal.
At Browns revocation hearing, the State alleged the following probation violations: (1) failure to follow advice and instructions of supervising agent, (2) failure to remain drug free as provided in the original sentence by testing positive for cocaine, (3) failure to report to supervising agent, and (4) failure to pay supervision fees. Brown admitted the alleged violations were true. Though not citing it by name, defense counsel stated that, after the United States Supreme Courts decision in Ferguson v. City of Charleston, [1] Brown would have a pretty legitimate post conviction relief case. However, counsel did not argue that, based on Ferguson, Browns conviction should be reversed. The trial judge revoked three years of Browns suspended sentence.
STANDARD OF REVIEW
The decision to revoke probation is in the discretion of the circuit court judge. State v. Hamilton, 333 S.C. 642, 511 S.E.2d 94 (Ct. App. 1999). This [C]ourts authority to review such a decision is confined to correcting errors of law unless the lack of legal or evidentiary basis indicates the circuit judges decision was arbitrary and capricious. Id. at 647, 511 S.E.2d at 96.
LAW/ANALYSIS
Brown argues the underlying conviction is invalid because of the United States Supreme Court decision in Ferguson v. City of Charleston. As such, Brown contends the trial judges order revoking her sentence should be vacated and her original conviction reversed.
Initially, we note this issue was neither raised to nor ruled upon by the trial judge at the probation revocation hearing. As such, it is not preserved for review by this court. State v. Nichols, 325 S.C. 111, 120-21, 481 S.E.2d 118, 123 (1997) (issue may not be raised for first time on appeal, but must have been raised to trial judge to be preserved for appellate review).
Regardless, there is insufficient evidence in the record to determine the factual basis of Browns guilty plea. As we do not know the circumstances surrounding Browns drug test such as, for example, whether consent was given we are unable to conclude whether the subsequent search was lawful. See State v. Hutto, 279 S.C. 131, 132, 303 S.E.2d 90, 91 (1983) (appellant has burden of presenting adequate record which is sufficiently complete to permit review). Accordingly, based upon the record before this court, in which Brown admits the alleged probation violations, the trial judge did not err in revoking Browns suspended sentence.
CONCLUSION
Based upon the foregoing, the lower courts order revoking three years of Browns suspended sentence is
AFFIRMED.
HEARN, C.J., GOOLSBY and SHULER, JJ., concur.
[1] 532 U.S. 67, 121 S. Ct. 1281, 149 L. Ed. 2d 205 (2001).