THE STATE OF SOUTH CAROLINA
In The Court of Appeals

The State,        Respondent,

v.

Charles W. Bailey        Appellant.

Appeal From York County
John C. Hayes, III, Circuit Court Judge

Unpublished Opinion No. 2004-UP-114
Submitted December 23, 2003 � Filed February 24, 2004

AFFIRMED IN PART, VACATED IN PART, and REMANDED�

Assistant Appellate Defender Tara S. Taggart, of Columbia, for Appellant.

Deputy Director for Legal Services Teresa A. Knox, Legal Counsel Tommy Evans, Jr. and Legal Counsel J. Benjamin Aplin, all of Columbia, for Respondent.

PER CURIAM:� Charles W. Bailey was indicted for unlawful possession of prescription drugs and resisting arrest and sentenced to an indeterminate sentence pursuant to Section 5(c) of the Youthful Offender Act, suspended upon four-years probation and payment of restitution in the amount of sixty dollars.� Subsequently, an arrest warrant was issued against Bailey for violation of his probation.� Thereafter, the circuit court revoked Bailey�s probation, modified the sentence from Youthful Offender to an adult sentence of two-years imprisonment, and revoked the sentence in full.� Bailey appeals, arguing the circuit court lacked subject matter jurisdiction to revoke his probation as to his conviction for resisting arrest.� We affirm in part, vacate in part, and remand.

FACTUAL/PROCEDURAL BACKGROUND

Bailey was sentenced to an indeterminate sentence under Section 5(c) of the Youthful Offender Act, suspended upon four-years probation and payment of restitution in the amount of sixty dollars.� The sentence was given in disposition of two indictments, 96-GS-46-2868, charging Unlawful Possession of Prescription Drugs, and 96-GS-46-2869, charging Resisting Arrest.

Subsequently, an arrest warrant was issued against Bailey for violating his probation by: 1) failing to follow the advice of a probation agent; 2) failing to gain approval of an agent before moving out of state; 3) failing to maintain monetary obligations; and 4) failing to contact a South Carolina agent for transfer to New Hampshire, thereby� absconding from the jurisdiction.� The warrant referred solely to indictment 96-GS-46-2868.� At the conclusion of the probation revocation hearing, the circuit court revoked Bailey�s probation, modified the sentence from Youthful Offender to an adult sentence of two-years imprisonment, and revoked the sentence in full.� The written order revoking probation referred to the charges contained in both indictments.� Bailey appeals.

LAW/ANALYSIS

Bailey argues the circuit court lacked subject matter jurisdiction to revoke his probation on indictment 96-46-GS-2869 because the arrest warrant only referred to indictment 96-GS-46-2868.� We agree and vacate the portion of the order referring to indictment 96-46-GS-2869.�

�Subject matter jurisdiction to revoke an individual�s probation is conferred on the General Sessions Court by either the issuance of a probation violation warrant or the issuance of a probation violation citation and affidavit in lieu of a warrant.�� State v. Lee, 350 S.C. 125, 132, 564 S.E.2d 372, 376 (Ct. App. 2002); see State v. Felder, 313 S.C. 55, 56, 437 S.E.2d 42, 43 (1993) (�South Carolina Code Ann. � 24-21-450 (1989), [1] requires the issuance of a probation revocation warrant before probation may be revoked.� If a warrant has not been issued, the trial court lacks subject matter jurisdiction to revoke probation and any attempted revocation is a nullity.� South Carolina Code Ann. � 24-21-300 (1989), however, permits the use of a citation and affidavit in lieu of a warrant.� (internal citations omitted)).

No evidence exists within the record indicating an arrest warrant was issued charging Bailey with a violation of his probationary sentence under indictment 96-46-GS-2869.� Furthermore, the State concedes no arrest warrant was issued on that indictment.�

Thus, the circuit court lacked subject matter jurisdiction to revoke Bailey�s probation as to indictment 96-46-GS-2869.� See Lee, 350 S.C. at 132, 564 S.E.2d at 376.� Accordingly, the modification and revocation of Bailey�s sentence given in connection with indictment 96-GS-46-2869 by Order of Judge John C. Hayes on November 4, 2002, is hereby vacated.�

Based on the arrest warrant issued, the circuit court had subject matter jurisdiction to revoke Bailey�s probation and to modify his sentence as it related to indictment 96-GS-46-2868.� However, instead of modifying Bailey�s sentence as it related to this one charge, the circuit court modified the single sentence given for both indictments at trial.� Thus, we remand for a determination of Bailey�s modified sentence relating only to indictment 96-GS-46-2868.

CONCLUSION

For the foregoing reasons, the order of the circuit court, revoking Bailey�s probation is

AFFIRMED IN PART, VACATED IN PART, and REMANDED.�

GOOLSBY, HOWARD and KITTREDGE, JJ., concurring.