Wednesday, February 28, 2007

Final Orders and Record on Appeal

In Johnson v. SC Dept of Probation, the Supreme Court affirmed the Court of Appeals decision to dismiss an appeal because the final order was not included in the record on appeal. The Department argued below that absence of a favorable recommendation from a probation officer deprives the circuit court of subject matter jurisdiction to grant early termination of a person's probation. The record on appeal--prepared by the Department--contained the full transcript of the hearing before the trial court, including the Department’s subject matter jurisdiction argument and the trial court's oral ruling on the issue, but it did not include the trial court's final order in the record. Observing that a ruling is only final when reduced to writing and entered in the record, the Supreme Court held that because the Department failed to include the trial court's final order in the record on appeal, the court of appeals properly decided the case without reaching the merits.

The Supreme Court then went on to show why the Department's subject matter jurisdiction was wrong anyway. The Department argued that the circuit court lacked subject matter jurisdiction to consider Johnson's request because the request was not accompanied by a recommendation from the agent in charge of the responsible county probation office in support of early termination. This argument is based upon the language of S.C. Code Ann. 24-23-130 (Supp. 2005), which provides that "[u]pon the satisfactory fulfillment of the conditions of probation, the court, with the recommendation of the agent in charge of the responsible county probation office, may terminate the probationer or supervised prisoner from supervision." The Supreme Court held that the circuit court’s power and authority to hear cases involving probation derives from Article V, § 11 of the South Carolina Constitution and 24-21-410 of the Code. The statute cited by the Department did not concern subject matter jurisdiction.

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