Ambiguous notice and inadequate inquiry invalidate waiver of counsel at revocation hearing

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The State failed to prove that the petitioner knowingly and voluntarily waived her right to counsel at a probation revocation hearing, where the notice form was ambiguous and the trial court conducted only a minimal inquiry.

The South Carolina Supreme Court reversed the revocation and remanded for a new hearing. The petitioner had previously received suspended sentences and probation after pleading guilty to assault and battery of a high and aggravated nature and filing a false police report. Years later, the State alleged violations based on failure to maintain contact with a probation officer and missed payments. After receiving a notice stating she “may” have an attorney, the petitioner appeared without counsel, and the court revoked probation following a positive drug test.

The court held that, under South Carolina law, defendants have a right to counsel at revocation hearings, and any waiver must be knowing and voluntary. The State bears the burden of proving that the defendant understood both the right and the risks of self-representation.

Here, the record did not establish such understanding. The trial court failed to confirm that the petitioner comprehended the notice or intentionally chose to proceed without counsel. The notice itself was misleading, suggesting counsel was optional rather than a guaranteed right, creating a “mixed message.” The court emphasized that waiver requires actual understanding from the defendant’s perspective, not assumptions based on prior experience.

Because the State failed to meet its burden, the court reversed and remanded for a new hearing.

The 5 page opinion is The State v. Garvin, Lawyers Weekly No. 010-010-26.