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25013 - Slocumb v. State

Shearouse Adv. Sh. No.
S.E. 2d

THE STATE OF SOUTH CAROLINA

In The Supreme Court

Conrad Lamont

Slocumb, Petitioner,

v.

State of South Carolina, Respondent.

ON WRIT OF CERTIORARI

Appeal From Orangeburg County

Joseph A. Wilson, Judge

Opinion No. 25013

Submitted September 22, 1999 - Filed November 8, 1999

REVERSED

Senior Assistant Appellate Defender Wanda Haile, of

S.C. Office of Appellate Defense, of Columbia, for

petitioner.

Attorney General Charles M. Condon, Deputy

Attorney General John W. McIntosh, and Assistant

Deputy Attorney General Teresa A. Knox, all of

Columbia, for respondent.

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SLOCUMB v. SC

MOORE, A.J.: Petitioner pled guilty in general sessions court to

a charge of first degree criminal sexual conduct (CSC) committed when he

was thirteen years old. He was sentenced to thirty years' imprisonment. We

granted a writ of certiorari to review the denial of his application for post

conviction relief (PCR) and now reverse.1

FACTS

On October 27, 1992, petitioner accosted a high school teacher

(Victim) in the school parking lot and forced her into her car at gunpoint. He

directed Victim to drive to a wooded area and forced her out of the car.

When Victim refused to go into the woods with him, petitioner grabbed her,

roughly squeezing her breast, and digitally penetrated her vagina through

her clothing. He then shot her five times in the face and head and drove off

in her car leaving her on the side of the road. Victim was able to walk to a

nearby residence for help and later identified petitioner.

Petitioner was charged as a juvenile with first degree CSC,

kidnapping, unlawful possession of a firearm on school property, grand

larceny of a vehicle, armed robbery, and assault and battery with intent to

kill. After a hearing, the charges were transferred to general sessions court.

In exchange for petitioner's guilty plea to CSC first degree, the Solicitor

agreed to nol prosse the remaining charges.

ISSUE

Is a CSC charge committed by a juvenile under the

age of fourteen years transferable to general sessions

court?


1 The Court of Appeals recently affirmed petitioner's convictions for

first degree burglary, first degree CSC, robbery, kidnapping, and escape

committed in March 1996 during his escape from custody. State v. Slocumb,

Op. No. 3034 (S.C. Ct. App. filed August 16, 1999). He was sentenced to

three concurrent life sentences, and consecutive fifteen- and five-year

sentences. These convictions are not before us here.

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SLOCUMB v. SC

DISCUSSION

In 1968, the legislature provided for "rape" and "attempted rape"

charges committed by any age juvenile to be transferred from family court to

general sessions court upon petition.2 Subsequently, in 1977, the legislature

enacted S.C. Code Ann. § 16-3-659 (1985) which provides:

The common law rule 3 that a boy under fourteen

years, is conclusively presumed to be incapable of

committing the crime of rape shall not be enforced in

this State. Provided, that any person under the age

of 14 shall be tried as a juvenile for any violations of

§§ 16-3-651 to 16-3-659.1. 4

In 1981, four years after the enactment of § 16-3-659, the original provision

allowing the transfer of rape and attempted rape charges was repealed and

simultaneously reenacted, 5 continuing the transfer provision 6 for charges


2 Section 14- 21-510(D), formerly 1962 Code § 15-1095.9, provided in

pertinent part:

Within two days after the filing of a petition in the family court,

alleging the child has committed the offense of murder,

manslaughter, rape, attempted rape, arson, common-law

burglary, bribery or perjury, the person executing such petition

may request in writing that the case be transferred to the court

of general sessions, with a view to proceeding against such child

as a criminal rather than as a child coming within the purview

[of the family court's jurisdiction]. The judge of the family court

is authorized to determine this request.

3 State v. Nelson, 88 S.C. 125, 70 S.E. 445 (1911).

4 First degree CSC is codified at S.C. Code Ann. § 16-3-652 (Supp.

1998).

5 1981 S.C. Act No. 71, §§ 1 & 3.

6 Section 20-7-430(6), now § 20-7-7605(6) (Supp. 1998), provided in

pertinent part:

(continued....)

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SLOCUMB v. SC

involving "criminal sexual assault."7

As a later enactment to the original transfer provision, § 16-3

659 limited the transfer of sexual offenses to those committed by juveniles

fourteen years of age and over. See Stone v. State, 313 S.C. 533, 443 S.E.2d

544 (1994) (more recent and specific statute prevails). The question is what

effect the subsequent 1981 reenactment of the transfer provision had on §

16-3-659.

When the legislature reenacts the same provision and provides

for its taking effect at the same time as the repeal of the old statute, it is

presumed the legislature intended to continue the provision in force without

interruption. South Carolina Mental Health Commissioner v. May, 226 S.C.

108, 83 S.E.2d 713 (1954). Applying this basic rule of statutory construction,

other courts have held the reenactment of a statutory provision does not

change the effect of an intermediate act that qualified or limited the earlier

enactment. Rather, the intervening statute will be deemed to qualify or

modify the new statute in the same manner that it previously modified the

earlier enactment. See People ex rel. Brenza v. Fleetwood, 413 111. 530, 109

N.E.2d 741 (1952); State ex rel. Palmer v. Circuit Court, 244 Ind. 297, 192

N.E.2d 625 (1963); State ex rel. Village of Buhl v. Borgen, 231 Minn. 317, 43

N.W.2d 95 (1950); State v. Sam, 85 Wash.2d 713, 538 P.2d 1209 (1975).


(continued ...)

Within two days after the filing of a petition in the family court

alleging the child has committed the offense of murder or

criminal sexual assault, the person executing such petition may

request in writing that the case be transferred to the court of

general sessions with a view to proceeding against such child as

a criminal rather than as a child coming within the purview of

[the family court's jurisdiction]. The judge of the family court is

authorized to determine this request.

This section was subsequently amended to provide for thirty days instead of

two days.

7 We have equated "rape" with the revised statutory term "criminal

sexual conduct." State v. Summers, 276 S.C. 111 274 S.E.2d 427 (1981).

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SLOCUMB v. SC

As an intervening statute, § 16-3-659 was unaffected by the later

repeal and simultaneous reenactment of the transfer provision. Absent

further action by the legislature, § 16-3-659 continues to prohibit the

transfer of sexual offenses committed by juveniles under fourteen years of

age. Since petitioner was thirteen at the time he committed this offense, the

CSC charge could not be transferred to general sessions court and general

sessions court was without jurisdiction to accept his plea. 8

Accordingly, the denial of PCR is

REVERSED.

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


8 See S.C. Code Ann. § 20-7-400(A)(1)(d) (1985) (family court has

exclusive jurisdiction of violation of state law by person under eighteen years

except for certain traffic or fish, game, and watercraft violations).

p.31