STATE оf South Dakota, Plaintiff and Appellee, v. Cole C. McCORMICK, Defendant and Appellant.
No. 15068.
Supreme Court of South Dakota.
Decided April 9, 1986.
121
Considered on Briefs Feb. 11, 1986.
At trial, counsel for Evelyn moved the court to allow an amendment to hеr answer, specifically asking for reimbursement of these taxes should the court order specific performance. The court denied this motion. After trial, however, the court ordered specific performance and undеr its inherent equitable powers, ordered reimbursement of the taxes in the amount of $5,810.11. The court, in its memorandum decision, relied upon the equitable doctrine of subrogation in awarding Evelyn reimbursement for taxes paid.
Terry argues application of the doctrine is erroneous in that 1) the equities of the parties are not clear, and 2) exercise of the doctrine will not achieve the ultimate discharge of a debt by the persons who in equity ought to pay it.
The findings of the trial court will not be disturbed on appeal unless they are clearly erroneous.
Subrogation is a creature of equity which the court may invokе when it is shown that one party discharged a liability for which the other party was also liable. American Surety Co. v. Western Surety Co., 71 S.D. 126, 22 N.W.2d 429 (1946). “[I]ts purpose [is] the working out of an equitable adjustment between the parties by securing the ultimate discharge of a debt by the person who in equity аnd good conscience ought to pay it.” Id., 71 S.D. at 130, 22 N.W.2d at 431.
Terry argues that imposing the taxes on him would not secure the “ultimate discharge” of the debt, since subsequent interest holders in the Club hereinabove noted should be liable for the taxes. We hold, hоwever, that under the agreement with Evelyn, Terry assumed responsibility for all taxes and therefore, as between Terry and Evelyn, he was the party who in equity and good conscience ought to pay the tax debt. The “ultimate discharge” language in American Surety, supra, refers to the debt between the parties, not the imposition of a debt arising by the subsequent actions of some third person not in privity with both parties.
The only remaining question is whether Evelyn paid the taxes as a volunteer. See generally 73 Am.Jur.2d Subrogation § 23 (1974). The trial court specifically found that Evelyn was not a volunteer, but believed she had an obligation to pay the taxes. Under the modern liberal trend, the existence of a supposed obligation is enough to allow subrogation, especially in light of the flexibility of the doctrine. 73 Am.Jur.2d Subrogation § 6 (1974).
We affirm the judgment.
FOSHEIM, C.J., HENDERSON and WUEST, JJ., and HERTZ, Circuit Judge, acting as a Supreme Court Justice, concur.
SABERS, J., not having been a member of the Court at the time this action was submitted to the Court, did not participаte.
Richard Braithwaite, Sioux Falls, for defendant and appellant.
WUEST, Justice.
This is an appeal from an order revoking a suspended impositiоn of sentence. We reverse and remand for a new hearing.
On April 22, 1985, appellant Cole C. McCormick (McCormick) was given a suspended imposition of sentence and placed on probation for the offense of third-degrеe burglary. On June 7, 1985, McCormick was again arrested and charged with third-degree burglary in connection with his actions in an alley behind a Sioux Falls business on that date. The charge was later amended to attempted third-degree burglary. On July 23, 1985, McCormick wаs tried and acquitted of the amended charge. The trial court dismissed the charge for failure of State to prove one of the essential elements of third-degree burglary under
Prior to trial, State served and filed a motion to revoke McCormick‘s suspended sentence based solely on the third-degree burglary charge. The revocation motion was never аmended to allege attempted third-degree burglary, nor any other violations. On August 1, 1985, a revocation hearing was held. At the commencement of the hearing there was a discussion concerning whether McCormick‘s probation cоuld be revoked on grounds other than the burglary charge set out in the revocation motion. McCormick maintained that the court could only consider the third-degree burglary charge because due process warranted prior written notice of any other alleged violations. He argued he was only prepared to defend against the charge alleged in the motion. The trial court, however, stated its intention to consider three other possible violations stemming from McCormick‘s arrest on June 7, including: (1) attempted first-degree burglary under
The trial court offered McCormick additional time to preparе and answer these violations. McCormick, however, had been in jail since his arrest, and because the trial court refused to release him on his own recognizance during the continuance,
One of the minimum due process requirements of parole or probation revocation proсeedings is written notice of the claimed violations.2 Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973); Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972); see also United States v. Davila, 573 F.2d 986 (7th Cir.1978); Clark v. Wyrick, 538 F.2d 1327 (8th Cir.1976); Collins v. State, 151 Ga. App. 116, 258 S.E.2d 769 (1979); People v. Good, 66 Ill.App.3d 32, 22 Ill.Dec. 777, 383 N.E.2d 253 (1978); Rubera v. Commonwealth, 371 Mass. 177, 355 N.E.2d 800 (1976); State v. Anderson, 303 N.W.2d 98 (N.D.1981); Commonwealth v. Honeyblue, 246 Pa.Super. 442, 371 A.2d 919 (1977); State v. Ellefson, 334 N.W.2d 56 (S.D. 1983); State v. Lohnes, 266 N.W.2d 109 (S.D.1978).
The purpose of the requirement that written notice be given prior to such proceedings is to insure that the parolee or probationer is able to sufficiently prepare his case, both against the allegations of violations and against the contention that the violations, if proven, demonstrate that parole or probation is no longer an effective rehabilitative tool and shоuld be revoked. In other words, the requirement bears directly upon the ability to contest revocation proceedings. Com. v. Perry, 254 Pa.Super. 48, 385 A.2d 518 (1978). In the present case, McCormick was not informed of the charges upon which the trial court revoked his probation until the time of the hearing. Indeed, State conceded during the proceeding that it intended to rely only on the third-degree burglary charge set out in the motion, and it was the trial judge who proposed that additional violations сould possibly be found from McCormick‘s actions on the night of his arrest.
State contends that McCormick waived his right to written notice of the alleged violations because he refused the court‘s offer to continue the hearing. Constitutionаl rights, including those in the Bill of Rights, may be waived by the defendant. Jones v. State, 353 N.W.2d 781 (S.D.1984); State v. Violett, 79 S.D. 292, 111 N.W.2d 598 (1961). However, the waiver must be made voluntarily, knowingly, and intelligently, with sufficient awareness of the relevant circumstances and likely consequences. Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970); Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); Jones, supra.
In the present case, we note that the trial court allowed appellant and his counsel an opportunity to privately discuss the court‘s offer of a continuance. While the оffer was rejected, the record does not affirmatively establish that appellant, a twenty-two year old high school drop out, was informed by counsel or the court that his rejection of the offer could be construed as a waiver of his right to prior notice of the charges upon which his probation was to be revoked, nor did appellant state he waived the notice requirement. The record reflects that after the offer was rejected by counsel the trial court did allow appellant‘s counsel to preserve his record in connection with his position that due process required prior notice. These facts militate against finding that the alleged waiver was made “knowingly and intelligently, with sufficient awareness of the relevant circumstances and likely consequences.” Further, the fact that appellant was to remain incarcerated during the continuance affects the voluntariness оf the alleged waiver. Under these circumstances, we believe the State has failed to show a waiver of appellant‘s right to prior notice of the alleged probation violations. Moreover, we believe the Suрreme Court‘s pronouncements in Morrissey and Gagnon, supra, require that prior to a parole or probation revocation proceeding, the defendant be given notice of sufficient specificity to enable him and his counsel to know and understand the nature of the charges and prepare for the proceeding. Accordingly, we reverse and remand to the trial court for a new revocation hearing.3 The court may direct the state‘s attorney, an officer of the court, to prepare appropriate written notice consistent with this opinion.
MORGAN and HENDERSON, JJ., and HERTZ, Circuit Judge, acting as a Supreme Court Justice, concur.
FOSHEIM, C.J., dissents.
SABERS, J., not having been a member of the Court at the time this action was submitted tо the Court, did not participate.
FOSHEIM, Chief Justice (dissenting).
I dissent.
Notice was sufficient since all acts relied upon to revoke McCormick‘s probation arose from the same event which resulted in the Third Degree Burglary charge. Moreover, McCormick declined the continuance tendered by the trial court.