THE STATE OF SOUTH CAROLINA
In The Supreme Court
Alvin Owens, Petitioner,
State of South
ON WRIT OF CERTIORARI
Appeal From Horry County
Sidney T. Floyd, Trial Judge
David H. Maring, Sr., Post-Conviction Judge
Opinion No. 24812
Submitted June 16, 1998 - Filed July 13, 1998
Assistant Appellate Defender Lesley M. Coggiola
and Assistant Appellate Defender Melissa J. Reed
Kimbrough, of South Carolina Office of Appellate
Defense, both of Columbia, for petitioner.
Attorney General Charles Molony Condon, Deputy
Attorney General John W. McIntosh, Assistant
Deputy Attorney General Teresa A. Knox, and
Assistant Attorney General Barbara M. Tiffin, all of
Columbia, for respondent.
BURNETT, A.J.: Petitioner was convicted of murder and
sentenced to life imprisonment. His conviction and sentence were affirmed
on direct appeal. State v. Owens, 309 S.C. 402, 424 S.E.2d 473 (1992),
cert. denied, 507 U.S. 1036, 113 S.Ct. 1861, 123 L.Ed.2d 482 (1993).
Petitioner filed an application for post-conviction relief(PCR). The Court
granted a writ of certiorari to review the decision of the PCR judge
denying petitioner's application. We reverse.
In January 1985, petitioner was convicted of kidnapping and
sentenced to life imprisonment. The Court affirmed his conviction and
sentence. State v. Owens, 291 S.C. 116, 352 S.E.2d 474 (1987).
Based on the same set of facts, petitioner was convicted of
murder in 1986.1 He was sentenced to death. The Court affirmed his
conviction and sentence. State v. Owens, 293 S.C. 161, 359 S.E.2d 275,
cert. denied, 484 U.S. 982, 108 S.Ct. 496, 98 L.Ed.2d 495 (1987). On post-
conviction relief (PCR), petitioner's death sentence was vacated and
petitioner was granted a new trial on the murder charge.
In February 1991, petitioner was retried for the murder,
convicted, and sentenced to life imprisonment. This conviction and
sentence were affirmed. State v. Owens, 309 S.C. 402, 424 S.E.2d 473
(1992), cert. denied, 507 U.S. 1036, 113 S.Ct. 1861, 123 L.Ed.2d 482
Did the PCR judge err by failing to vacate petitioner's life
sentence for kidnapping where petitioner received a sentence
for a murder which occurred during the commission of the
Petitioner argues his kidnapping sentence should be vacated.
State v. Owens, 293 S.C. 161, 359 S.E.2d 275, cert. denied, 484 U.S. 982,
108 S.Ct. 496, 98 L.Ed.2d 495 (1987).
He contends the kidnapping sentencing statute prohibits concurrent life
sentences where a defendant is also convicted of a murder which occurs
during the commission of the kidnapping. We agree.
At the time of petitioner's retrial for murder in February 1991,
the kidnapping punishment statute provided as follows:
Whoever shall unlawfully seize, confine, inveigle, decoy, kidnap,
abduct or carry away any other person by any means
whatsoever without authority of law, except when a minor is
seized or taken by a parent thereof, shall be guilty of a felony
and, upon conviction, shall suffer the punishment of life
imprisonment unless sentenced for murder as provided in § 16-
S.C. Code Ann. § 16-3-910 (1985).2
The Court has summarily vacated life sentences for kidnapping
when the defendant received a concurrent sentence under the murder
statute. State v. Joyner, 289 S.C. 436, 346 S.E.2d 711 (1986); State v.
Livingston, 282 S.C. 1, 317 S.E.2d 129 (1984); State v. Stroman, 281 S.C.
508, 316 S.E.2d 395 (1984); State v. Perry, 278 S.C. 490, 299 S.E.2d 324,
cert. denied, 461 U.S. 908, 103 S.Ct. 1881, 76 L.Ed.2d 811 (1983); State v.
Copeland, 278 S.C. 572, 300 S.E.2d 63 (1982), cert. denied, 460 U.S. 1103,
103 S.Ct. 1802, 76 L.Ed.2d 367 (1983); State v. Adams, 277 S.C. 115, 283
S.E.2d 582 (1981); State v. McCall, 304 S.C. 465, 405 S.E.2d 414 (Ct. App.
1991). In each of these cases, however, the defendant was simultaneously
tried, convicted, and sentenced for murder and kidnapping. This Court
has not considered the applicability of § 16-3-910 when the defendant is
tried, convicted, and sentenced separately for kidnapping and murder.
The PCR judge concluded § 16-3-910 prohibits a life sentence
for kidnapping only when the kidnapping sentence is received in
conjunction with or subsequent to the life sentence for murder.
Consequently, since petitioner was sentenced for kidnapping five years
before he was sentenced for murder, the PCR judge determined petitioner's
maximum period of thirty years' imprisonment. The prohibition against
concurrent sentences for murder and kidnapping was retained.
life sentence for kidnapping was proper.
We disagree. There are no temporal limitations in § 16-3-910.
Allowing the State to elect to try a defendant separately and obtain two
sentences where concurrent sentences would otherwise be prohibited
circumvents the language of the statute where, as here, the murder
occurred during the commission of the kidnapping. Although petitioner
was properly sentenced to life imprisonment at the time he was convicted
of kidnapping in 1985, when petitioner was convicted and sentenced for
the associated murder, his sentence for kidnapping should have been
vacated. Accordingly, the decision of the PCR judge is reversed and
petitioner's kidnapping sentence is hereby vacated.3 Holland v. State, 322
S.C. 111, 470 S.E.2d 378 (1996)(where there is no probative evidence to
support the PCR judge's findings, the findings should not be upheld).
FINNEY, C.J., TOAL, MOORE and WALLER, JJ. , concur.
petitioner's credit for time served for the kidnapping sentence and apply
such credit to the murder sentence.