‘May’ isn’t enough: SC Supreme Court reverses probation revocation over ambiguous counsel notice

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The state failed to prove that the petitioner knowingly and voluntarily waived her right to counsel at her probation revocation hearing, given the ambiguous notice and inadequate judicial inquiry, the South Carolina Supreme Court has ruled, reversing the revocation and remanding for a new hearing.

Petitioner had originally pled guilty in 2018 to assault and battery of a high and aggravated nature and filing a false police report, receiving suspended sentences and probation. Several years later, the state alleged she violated probation by failing to maintain contact with her probation officer and by falling behind on required payments. After being served with a violation warrant while already in custody on an unrelated matter, petitioner signed a notice form informing her of the upcoming revocation hearing and stating that she “may” have an attorney represent her. At the hearing, she appeared without counsel. The trial court briefly confirmed that she had signed the notice and knew it mentioned an attorney but did not conduct a more detailed inquiry. After petitioner tested positive for cocaine, the court revoked her probation and imposed the full underlying sentence, even though her probation term was close to expiring.

On appeal, the key issue was whether petitioner had knowingly and voluntarily waived her right to counsel. Under South Carolina law, defendants are guaranteed the right to counsel at probation revocation hearings, even though the federal Constitution does not automatically require counsel in that context. While a defendant may waive that right, the state bears the burden of proving the waiver was made freely and intelligently, with an adequate understanding of both the right itself and the risks of self-representation.

The state Supreme Court found the record insufficient to establish such a waiver. First, the trial court failed to confirm that petitioner understood the contents of the notice form or that she voluntarily chose to proceed without counsel. Second, the form itself was ambiguous, stating only that she “may” have an attorney, rather than clearly informing her of a guaranteed right to counsel. This ambiguity, combined with the court’s minimal inquiry, created at best a “mixed message” about her rights. Waiver requires actual comprehension from the defendant’s perspective, not merely formal notice or assumptions based on prior experience.

Although petitioner had prior exposure to the criminal justice system, the high court declined to infer knowledge or waiver from that history, reiterating that speculation cannot satisfy the state’s burden. The court contrasted this case with prior precedent where a valid waiver was found only after a thorough in-court colloquy confirming the defendant’s understanding.

Because the state failed to demonstrate that petitioner knowingly and voluntarily relinquished her right to counsel, the state Supreme Court reversed the probation revocation and remanded for a new hearing, underscoring the necessity of clear advisements and meaningful judicial inquiry before accepting a waiver of counsel.

The State v. Garvin (Lawyers Weekly No. 010-010-26, 5 pp.) (D. Garrison Hill, J.) Appealed from Orangeburg County Circuit Court (Maite Murphy, J.) Chief Appellate Defender Wanda H. Carter, of Columbia, for Petitioner. Matthew C. Buchanan, of South Carolina Department of Probation Parole and Pardon Services, of Columbia, for Respondent. South Carolina Supreme Court