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24812 - Alvin Owens v. State

Davis Adv. Sh. No. 25
S.E. 2d

THE STATE OF SOUTH CAROLINA

In The Supreme Court





Alvin Owens, Petitioner,

v.

State of South

Carolina, Respondent.





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





REVERSED





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

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OWENS v. STATE

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.





FACTS

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

(1993).





ISSUE

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

kidnapping?





DISCUSSION

Petitioner argues his kidnapping sentence should be vacated.


1 The murder occurred during the commission of the kidnapping.

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).



p.23


OWENS V. STATE

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-

3-20.





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


2 Effective June 5, 1991, the penalty for kidnapping was reduced to a

maximum period of thirty years' imprisonment. The prohibition against

concurrent sentences for murder and kidnapping was retained.

p.24


OWENS v. STATE





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).





REVERSED.

FINNEY, C.J., TOAL, MOORE and WALLER, JJ. , concur.








3 The South Carolina Department of Corrections shall determine

petitioner's credit for time served for the kidnapping sentence and apply

such credit to the murder sentence.





p.25