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2004-MO-015 - Mobley v. State
THE STATE OF SOUTH CAROLINA

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Supreme Court

Kenneth M. Mobley,        Petitioner,

v.

State of South Carolina,        Respondent.


ON WRIT OF CERTIORARI


Appeal From York County
Frank Eppes, Plea Judge
Lee S. Alford, Post Conviction Judge


Memorandum Opinion No. 2004-MO-015
Submitted March 22, 2004 - Filed April 8, 2004


VACATED IN PART


Assistant Appellate Defender Tara S. Taggart, of S.C. Office of Appellate Defense, of Columbia, for Petitioner.

Attorney General Henry D. McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, and Assistant Attorney General David Spencer, all of Columbia, for Respondent.


PER CURIAM:  Petitioner seeks a writ of certiorari from the denial of his application for post-conviction relief (PCR).  The petition for a writ of certiorari is denied on petitioner’s Question 2 and granted on petitioner’s Question 1.  We dispense with further briefing and vacate petitioner’s guilty plea to assault and battery of a high and aggravated nature (ABHAN).

Petitioner was indicted for second-degree lynching, possession of crack cocaine with intent to distribute, and possession of crack cocaine with intent to distribute within proximity of a public or private university.  Petitioner pled guilty to the two drug charges and to ABHAN as a lesser-included offense of second degree lynching. 

In Knox v. State, 340 S.C. 81, 530 S.E.2d 887 (2000), this Court held that ABHAN is not a lesser included offense of second degree lynching.  Accordingly, we vacate petitioner’s guilty plea to ABHAN.

VACATED IN PART.

TOAL, C.J., WALLER, BURNETT and PLEICONES, JJ., concur.  MOORE, J., not participating.