State v. Canady

301 S.C. 202 (1990)

391 S.E.2d 248

The STATE, Respondent v. Harry CANADY, Appellant.

23190

Supreme Court of South Carolina.

Heard February 5, 1990.

Decided April 12, 1990.

Asst. Appellate Defender Tara Dawn Shurling, of South Carolina Officer of Appellate Defense, Columbia, for appellant.

Atty. Gen. T. Travis Medlock, Asst. Attys. Gen. Harold M. Coombs, Jr., and William Edgar Salter, III, Columbia, and Sol. Charles M. Condon, Charleston, for respondent.

Heard Feb. 5, 1990.

Decided April 12, 1990.

CHANDLER, Justice:

Harry Canady appeals from a revocation of his probation. *203 We affirm.

In April 1986, Canady was convicted of committing a lewd act on a minor and sentenced to ten years, suspended upon service of five years probation. In May, 1988, unrepresented by counsel, he was convicted of criminal domestic violence and sentenced to fifteen days in prison.

Subsequently, in August, 1988, the Circuit Court revoked five years of Canady's probation, finding that he had: (1) violated a state law (the criminal domestic violence conviction), (2) failed to follow the advice and instructions of his probation agent, (3) failed to report to his probation agent as directed and (4) failed to attend and complete mental health counselling.[1]

Did the Court err in considering Canady's uncounseled conviction in revoking probation?

Relying upon Baldasar v. Illinois, 446 U.S. 222, 100 S. Ct. 1585, 64 L.Ed. (2d) 169, (1980), reh. denied, 447 U.S. 930, 100 S. Ct. 3030, 65 L.Ed. (2d) 1125, Canady contends that the Court erred in considering his uncounseled criminal domestic violence conviction. We disagree.

In Baldasar the U.S. Supreme Court held that an uncounseled conviction, valid in itself, could not be used to enhance punishment for a subsequent offense.

Here, the criminal domestic violence conviction did not result in any enhancement of Canady's "lewd acts" conviction but, rather, was considered only as violation of the terms of probation.

Canady's remaining exception if dismissed pursuant to Supreme Court Rule 23. See State v. Sullivan, 277 S.C. 35, 282 S.E. (2d) 838 (1981).

Affirmed.

GREGORY, C.J., and HARWELL, FINNY and TOAL, JJ., concur.

[1] Each was a condition of Canady's probation.