Did a South Carolina family court need to suspend a juvenile commitment when placing a child on probation?

Plain-English summary

A circuit solicitor asked what a South Carolina family court could do after a juvenile violated probation when the original disposition included no suspended commitment, or suspended only a limited evaluation. The Attorney General said South Carolina law did not directly address whether suspended sentences were necessary in juvenile adjudications. It also said adult sentencing rules were not a useful substitute because juvenile proceedings had a different purpose.

The opinion reviewed decisions and statutes from other states as persuasive authority. From them, it suggested that a juvenile court could modify a disposition after a probation violation and impose a disposition that could have been imposed in the original case, even without a previously suspended commitment. It described the original suspended sentence, if any, as irrelevant to that possible modification. The AG closed by suggesting that the Legislature might provide guidance, so the opinion should not be read as identifying a clear South Carolina statutory rule on the question.

Currency note

This opinion was issued in 2016. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Did the AG find a South Carolina law requiring a suspended sentence with juvenile probation?
A: No. It said South Carolina law did not address whether suspended sentences were necessary in juvenile adjudications.

Q: Did the opinion say probation without a suspended commitment left a later judge powerless?
A: No. Its review of other jurisdictions suggested that a court could change the disposition after a violation and impose one that was available in the original case.

Q: Did a previously suspended evaluation necessarily cap the later disposition?
A: The AG's conclusion treated a prior suspended sentence as irrelevant to a later modification for noncompliance, based on the persuasive authorities it reviewed.

Q: Why did the opinion distinguish adult sentencing?
A: It said juvenile adjudication differed from adult prosecution and quoted South Carolina authority describing the child's best interest as central to family court's role.

Background and statutory framework

The opinion began with the absence of a direct South Carolina answer. It then compared juvenile probation and modification rules in other jurisdictions, some of which expressly allowed a court to substitute a disposition available at the original adjudication. The AG offered that comparison as persuasive reasoning and noted that the Legislature may wish to provide guidance on the issue.

Citations and references

• The opinion opened its analysis: “South Carolina law does not address whether suspended sentences are necessary in juvenile adjudications.”
• Its conclusion said “The Legislature may wish to provide guidance on this matter, however.”

Official title

Regarding suspended sentences in juvenile adjudications.

Requester

Caroline F. Fox, Senior Assistant Solicitor, Fifteenth Judicial Circuit Office of the Solicitor.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/february-3-2016/
• Original PDF: https://www.scag.gov/wp-content/uploads/2016/02/Fox-C.-OS-9876-FINAL-Opinion-2-3-2016-00856981xD2C78.pdf

Original opinion text

\

s,

o.

&

r

If

u

os

I

m

*1

Pjg*
\

r>ns

,T

/

V

O

.W

°^OUTtt cfV
Alan Wilson
Attorney General

February 3. 2016

Caroline F. Fox
Senior Assistant Solicitor
Fifteenth Judicial Circuit Office of the Solicitor
PO Box 1276
Conway. SC 29528

Dear Ms. Fox:

We have received your opinion request regarding suspended sentences in juvenile adjudications. Specifically, you state the following:

[w]e

respectfully

request

an

Attorney

General

suspended sentences on juvenile adjudications.

Opinion

regarding

We have encountered

differing opinions among Family Court judges. DJJ officials and defense attorneys on whether suspended sentences are necessary and how they are to be applied.

If a Juvenile Court judge sentences a juvenile to straight probation, with

no suspended sentence, what can another judge do on a probation violation?

Some judges believe they can give any sentence they wish;

others believe if there was no suspended sentence, the judge hearing the violation can do nothing other than continued probation, or a sentence of up to six months for being in contempt of the court order.

Likewise, if there is a sentence of Reception and Evaluation suspended to probation, some judges believe the only sentence they can give on a violation of probation is the evaluation, with only continued probation upon disposition (since the court would have already imposed the only suspended sentence).

We have judges who always give an indeterminate commitment to DJJ suspended to probation, which they feel gives the next judge the option of giving any sentence (up to the indeterminate commitment) upon a violation of probation. However, other judges will not give a suspended DJJ commitment because they believe the next judge is then required to

impose that indeterminate commitment.

Rembert C. Dennis Building

• Post Office Box 1 1549 . Colombia. SC 2921 1-1549

. Telephone 803-734-3970

. Facsimile 803-253-6283

Carolina F. Fox

Page 2

February 3, 2016

In General Sessions, every defendant is put on notice of what sentence he faces if he violates probation; that is not happening on a consistent basis in Juvenile Court and we do not want to risk a case coming back on appeal

if a juvenile

with

no

suspended

sentence

was

given

an

indeterminate commitment to DJJ on his probation violation.
We would like to have an opinion on this matter to help with uniformity

of sentencing.
LAW/ANALYSIS:

You are correct that South Carolina law does not address whether suspended sentences are necessary in juvenile adjudications.

And reviewing sentencing in adult criminal proceedings is not helpful because

minors are treated differently than adults. The South Carolina Supreme Court in In re Stephen W.. 409 S.C. 73, 761

S.E.2d 231

(2014), explains why juvenile proceedings differ from adult criminal

prosecutions:
[t]he very nature of the juvenile system makes clear the family court

juvenile adjudication is an inherently different process than a typical criminal prosecution.

Indeed, '[t]he primary purpose of the juvenile

process is to exempt an infant from the stigma of a criminal conviction

and its attendant detrimental consequences.' In re Skinner. 272 S.C. 135, 137, 249 S.E.2d 746, 746 (1978).

'South Carolina, as parens patriae,

protects and safeguards the welfare of its children.

Family Court is

vested with the exclusive jurisdiction to ensure that, in all matters concerning a child, the best interest of the child is the paramount consideration.' Harris v. Harris. 307 S.C. 351, 353, 415 S.E.2d 391, 393

(1992) (citation omitted); see also State v. Caele. Ill S.C. 548, 552, 96 S.E. 291, 292 (1918) ("The state is vitally interested in its youth, for in them is the hope of the future. It may therefore exercise large powers in

providing for their protection and welfare.')
Courts in other jurisdictions agree that juvenile proceedings should be kept separate and distinct from adult proceedings. The Montana Supreme Court states that "'youths are to be given special treatment by

the courts' because the [Montana] Youth Court Act is 'designed to promote individual rehabilitation' and because youths 'are not subject to the same criminal sanctions as are adults.'" In the Matter of S.M.K.S.H.. 367 Mont. 176, 290 P.3d 718 (2012) (quoting In re Appeal of Cascade Co. Dist. Ct.. 2009 MT 355,

353 Mont. 194, 219 P.3d 1255). The Montana Supreme Court gives the following reasons for minors not being subject to the same criminal sanctions as adults:
[wjhere a youth in the youth court system faces a disposition different from an adult who has committed the same offenses, we have held that the youth and the adult 'are not similarly situated with respect to

Montana's sentencing laws for three reasons.' In re C.S.. 201 Mont. 144, 146, 687

P.2d 57,

59 (1984).

Those reasons are:

(1) juvenile

commitment under the Youth Court Act is 'strictly for rehabilitation, not

Carolina F. Fox

Page 3

February 3, 2016

retribution'; (2) the 'liberty interest of a minor is subject to reasonable regulation by the state, to an extent not permissible with adults' under the doctrine of parens patriae; and (3) other jurisdictions persuasively have concluded that 'adults and juveniles are not similarly situated in these

circumstances.' In re C.S.. 201 Mont. At 146 - 147, 687 P.2d at 59. Id.

The California Supreme Court concurs that juvenile adjudications serve a different purpose than adult

criminal convictions:
'[jjuvenile proceedings are conducted not only for the protection of

society, but for the protection and benefit of the youth involved.' {Derek L. v. Superior Court, supra, 137 Cal.App.3d at p. 236, 186 Cal.Rptr.

870.)' 'Juvenile court action thus differs from adult criminal prosecutions where 'a major goal is corrective confinement of the defendant for the protection of society.' [Citation.] The protective goal of the juvenile

proceeding is that 'the child [shall] not become a criminal in later years, but a useful member of society." [Citation.]" {In re Ricardo M. (1975) 52

CaI.App.3d 744, 749, 125 Cal.Rptr. 291; see also People v. Arias (1996)

13 Cal.4th 92, 164, 51 Cal.Rptr.2d 770, 913 P.2d 980.) In contrast to the more punitive aims of the adult criminal justice system, 'the purpose of the juvenile justice system is '(1) to serve the "best interests" of the delinquent

ward

by

providing

care,

treatment,

and

guidance

to

rehabilitate the ward and "enable him or her to be a law-abiding and productive member of his or her family and community,' and (2) to 'provide for the protection and safety of the public...." (§ 202, subds. (a), (b) & (d); [citations].)' [Citation.]" {In re R.O. (2009) 176 Cal.App.4th

1493, 1500, 98 Cal.Rptr.3d 738.)

In re Greg F.. 55 Cal.4*393, 283 P.3d 1160(2012).
Since South Carolina law does not answer your question, we reviewed the law of other jurisdictions. It appears that suspended sentences are not necessaiy in juvenile adjudications. In some states, courts have

determined that upon a minor's violation of probation, a court may revoke his probation and impose any sentence that it could have imposed in the original case. In the Matter of Cordale R.. No. E-96-019, 1997

WL 13022 (Ohio Ct. App. Jan. 10, 1997), the Ohio Court of Appeals explained that:
[a]n initial sentence of probation is deemed to be conditional and not final. In re Kelly (Nov. 7, 1995), Franklin App.No. 95-APF05-613, unreported (Citations omitted). Thus, where probation is conditioned on certain terms, sentence can be modified for noncompliance with those terms. Id. Upon revocation of probation a court may impose any sentence that it could have originally imposed. In re Herring (July 10, 1996), Summit App.No. 17553, unreported.

{Derek L. v. Superior Court (1982) 137 Cal.App.3d 228, 232 [186 Cal.Rptr. 870].)

Carolina F. Fox

Page 4
February 3, 2016

The California Supreme Court and the Illinois Appellate Court agree that when a minor's probation has been revoked, a court can make any disposition which it could have made in the original disposition of the case. The California court said:

if a [probation] violation is established, the most restrictive placement the court can impose is the maximum term of confinement on the original offense for which the ward was placed on probation. (John L. v. Superior Court (2004) 33 Cal.4th 158, 165, 14 Cal.Rptr.3d 261, 91 P.3d 205.)

In re Greg F.. supra. The Illinois court provided:
[i]n a probation revocation proceeding, the record must clearly show that the trial court considered the original offense and imposed a sentence

that would have been appropriate for that offense. People v. Hess, 241 III.App.3d 276, 284(1993).

In re T.C.S.. 2015 IL App (3d) 140834-U.
In other states, the state legislatures have by statute granted courts the authority to impose any sentence on

a juvenile that they could have imposed in the original case upon a probation violation.

For example, the

Virginia Legislature has enacted the following statute:
A.A juvenile or person. . .who violates the conditions of his probation granted pursuant to § 16.1-278.5 or § 16.1-278.8. . .may be proceeded against for a revocation or modification of such order. . . . B. If a juvenile or person is found to have violated a prior order of the

court or the terms of probation or parole, the court may, in accordance with the provisions of §§

16.1-278.2 through

16.1-278.10, upon a

revocation or modification hearing, modify or extend the terms of the order of probation or parole, including termination of probation or parole. However, notwithstanding the contempt power of the court as provided in § 16.1-292, the court shall be limited in the actions it may take to those that the court may have taken at the time of the court's original disposition pursuant to §§ 16.1-278.2 through 16.1-278.10, except as hereinafter provided VA Code Ann. § 16.1-291.

Based upon statute, the Georgia Court of Appeals in In re N.M.. 316 Ga.App. 649, 730 S.E.2d 127 (2012), concluded that "a dispositional order imposed upon the revocation of probation relates to the original delinquent act." The court did the following analysis:
[t]he juvenile code's probation revocation provision is found in the

paragraph

concerning the juvenile court's authority to

modify

its

dispositions, implying that revocation results in the modification of the

Carolina F. Fox

Page 5

February 3, 2016

original order of disposition, not a new proceeding. . .OCGA § 15-1 140(b) provides in its entirety:
[a]n order of the [juvenile] court may also be changed,

modified,

or

vacated

on

the

ground

that

changed

circumstances so require in the best interest of the child,
except an order committing a delinquent child to the

Department of Juvenile Justice, after the child has been

transferred to the physical custody of the Department of
Juvenile Justice, or an order of dismissal. An order

granting probation to a child found to be delinquent or
unruly may be revoked on the ground that the conditions
of probation have not been observed.
The New Mexico Court of Appeals provided a broad overview of the statutes in New Mexico in Matter of Lucio F.T.. 1994-NMCA-144, 1 19 N.M. 76, 80, 888 P.2d 958, 962:

[w]hen a child is placed on probation in New Mexico, all of the possible

dispositions that are not imposed are withheld, but only conditionally. See § 32A-2-24(B). The child must obey his probation conditions, and,

if the child violates them, any of the previously withheld dispositions may be imposed. Id. Section 32A-2-24(B) provides: "If a child is found to have violated a term of his probation the court may extend the period

of probation or make any other judgment or disposition that would have been appropriate in the original disposition of the case." Accordingly,

when a child's probation is revoked, the children's court is merely enforcing its previous sentence and is not imposing a new and separate sentence. See In re B.N.D., 366 S.E.2d at 188. By express legislative

provision, the children's court retains jurisdiction to extend the period of probation or to revoke an individual's probation during the period of such probation, even though the person has reached his eighteenth birthday. See NMSA 1978, § 32A-2-23(F) (Repl.Pamp.1993); see also State v.

Doe, 92 N.M. 589, 590, 592 P.2d 189, 190 (Ct.App.1979) (discussing statutory language that grants this authority).

The New Jersey Code provides that when a juvenile violates probation, the family court retains jurisdiction to "substitute any other disposition which it might have made originally." N.J.S.A. 2A:4A45(b). Based on this, in In re State ex rel. C.V.. 201 N.J. 281, 297, 990 A.2d 640, 649 (2010), the New Jersey Supreme Court concluded that a court is not "stuck with its initial suspended sentence length when it came time for the court to enter its disposition" after a juvenile's probation violation because "[flexibility in sentencing is, as noted, a hallmark of the [New Jersey] Code." ]d. The New Jersey Court

said the ability to modify an original suspended sentence is important because "courts must have some means by which to encourage compliance with probationary conditions, or the entire process may become farcical and ineffective" (quoting State v. H.B.. 259 N.J.Super 603. 614 A.2d 1081 (1992)). ]d

Carolina F. Fox

Page 6
February 3, 2016

In Montana, the applicable statute provides that "[i]f a youth is found to have violated a term of probation, the youth court may make any judgment of disposition that could have been made in the original case." Section 4 1-5-1 43 1(3), MCA. In In re S.M.K.-S.H.. supra, the Montana Supreme Court explained that:

[t]he language of § 41-5-1431(3), MCA, plainly allows a youth court, after a youth is found to have violated a term of his probation, to enter any dispositional order that originally could have been made, even if such an order extends the youth's probation or his commitment to the

court's jurisdiction [from the original dispositional order].

The law in Arkansas differs slightly from the other state statutes we were able to find. Section 9-27-339 provides:

(e) If the court finds by a preponderance of the evidence that the juvenile

violated the terms and conditions of probation, the court may: (1) Extend probation; (2) Impose additional conditions of probation; or

(3) Make any disposition that could have been made at the
time probation was imposed under § 9-27-330.
Ark. Code Ann. § 9-27-339.
CONCLUSION:

Although persuasive authority, the case law and statutes of other states suggest that suspended sentences

are not necessary in juvenile adjudications. Upon a juvenile's violation of probation, a court may revoke his probation and impose any sentence that it could have imposed in the original case. The fact that a court gave a suspended sentence during the original disposition is irrelevant since a subsequent court can modify a dispositional order for noncompliance with its terms of probation. The Legislature may wish to provide guidance on this matter, however. Sincerely,

Elinor V. Lister

Assistant Attorney General
REVIEWED AND APPROVED BY:

U
^Robert D. Cook
Solicitor General

—\

\