Right to Counsel and Hearing before Revocation of Probation

On March 5, 2014, the South Carolina Court of Appeals decided State v. Brannon, reminding the bench and bar about the rights that must be protected before the court may revoke probation.

“Troubled by the absence of any finding whatsoever in the appealed order,” the Court remanded the case for “the circuit court to determine whether, based on the complete record of this case, Brannon knowingly and voluntarily waived his right to a probation revocation hearing.”  Due process requires the State provide a hearing before revoking probation.  Any waiver of this hearing must be knowing and voluntary, based on a complete record.

Additionally, Brannon did not have a lawyer when the court revoked his probation.  State law requires the probation revocation hearing judge advise a person of the right to counsel, appoint counsel if the person is indigent, and obtain a knowing and voluntary waiver of counsel before the person proceeds without legal counsel.  The Court of Appeals, therefore, remanded the case for further proceedings regarding the right to counsel.

Hopefully, this case is isolated, and trial courts are not routinely revoking probation without convening a hearing and protecting the right to counsel.  A lawyer can provide valuable assistance during a probation revocation hearing.

Please click here to read the court opinion in State v. Brannon