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24822 - Sullivan v. State

Davis Adv. Sh. No. 27
S.E. 2d

THE STATE OF SOUTH CAROLINA

In The Supreme Court





Danny Lee Sullivan, Respondent,

v.

The State, Petitioner.



Appeal From Greenville County

Frank Eppes, Trial Judge

Thomas L. Hughston, Jr., Post-Conviction Judge





ORDER





Assistant Appellate Defender Aileen P. Clare and

Chief Attorney Dan T. Stacey, both of the South

Carolina Office of Appellate Defense, of Columbia,

for respondent.





Attorney General Charles Molony Condon, Chief

Deputy Attorney General John W. McIntosh, and

Assistant Deputy Attorney General Teresa A. Knox,

all of Columbia, for petitioner.





PER CURIAM: It is ordered that the opinion heretofore filed,

Opinion No. 24822, filed July 27, 1998, be withdrawn and the attached

opinion be substituted.





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Sullivan v. State

AND IT IS SO ORDERED

C.J.

A.J.

A.J.

A.J.

A.J.



Columbia, South Carolina

August 17, 1998



p.11


THE STATE OF SOUTH CAROLINA

In The Supreme Court





Danny Lee Sullivan, Respondent,

v.

The State, Petitioner.



Appeal From Greenville County

Frank Eppes, Trial Judge

Thomas L. Hughston, Jr., Post-Conviction Judge





Opinion No. 24822

Submitted June 16, 1998 - Filed July 27, 1998

Refiled August 17, 1998





REVERSED





Assistant Appellate Defender Aileen P. Clare and

Chief Attorney Dan T. Stacey, both of the South

Carolina Office of Appellate Defense, of Columbia,

for respondent.





Attorney General Charles Molony Condon, Chief

Deputy Attorney General John W. McIntosh, and

Assistant Deputy Attorney General Teresa A. Knox,

all of Columbia, for petitioner.





FINNEY, C.J.: The circuit court granted respondent Danny Lee

Sullivan post-conviction relief (PCR), finding the retroactive application of a

statute denying respondent parole eligibility violated his ex post facto rights.

We reverse.





Respondent pled guilty to two counts of assault and battery with

intent to kill (ABIK). These offenses were committed on August 31, 1984.

Respondent was sentenced to ten years in prison, suspended upon the service





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Sullivan v. State

of five years probation. Respondent pled guilty in 1988 to voluntary

manslaughter and was sentenced to thirty years in prison. This offense was

committed on September 23, 1987.





Respondent was informed in 1989 by the South Carolina

Department of Probation, Parole and Pardon Services that he was not eligible

for parole because he was serving a sentence for a violent crime, after having

been convicted and sentenced for a separate violent crime. Respondent's

prior conviction was not defined as a violent offense until 1986. In 1994,

respondent was informed that he was no longer considered to be a multi-

violent offender and would become parole eligible because the violent crimes

statute was amended. However, in 1995, respondent was informed that he

was returned to his prior position because of the retroactive amendment to

the violent crime law.





The PCR Judge granted respondent's application for relief and

found that the retroactive application of the violent crime definition for

purposes of parole eligibility violates the ex post facto clause of the State

Constitution. We disagree.





In 1986, S.C. Code Ann. § 24-21-640 was amended to provide that

parole may not be granted "nor is parole authorized to any prisoner serving

a sentence for a second or subsequent conviction, for violent crimes as defined

in Section 16-1-60." The violent crime statute, S. C. Code Ann § 16-1-60,

effective June 3, 1986, defined ABIK as a violent crime. Section 16-1-60 was

amended effective January 1, 1994 to require that the prior offense had to

be defined as a violent crime at the time of commission of the act. In 1995,

the statute was amended to delete the above restriction.





The violent crime statute was applicable when respondent

committed the second offense in 1987. Accordingly, ABIK was considered a

violent crime making respondent ineligible for parole when he was sentenced

for the voluntary manslaughter committed in 1987. The 1994 and 1995

amendments did not affect respondent's non-eligibility for parole.

Furthermore, it is not a violation of the ex post facto clause for the

legislature to enhance punishment for an offense based on a prior conviction

of the defendant, even though the enhancement provision was not in effect

at the time of the previous offense. State v. Dabney, 301 S.C. 271, 391

S.E.2d 563 (1990). Accordingly, the order granting post-conviction relief is





REVERSED.

TOAL, MOORE, WALLER and BURNETT, JJ., concur.





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