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2004-UP-209 - State v. Davis

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 Court of Appeals

The State,        Respondent,

v.

Russell Davis,        Appellant.


Appeal From Aiken County
James C. Williams, Jr., Circuit Court Judge


Unpublished Opinion No. 2004-UP-209
Submitted January 29, 2004 – Filed March 25, 2004


AFFIRMED


Assistant Appellate Defender Robert M. Pachak, Office of Appellate Defense, of Columbia, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Attorney General Deborah R.J. Shupe, all of Columbia; and Solicitor Barbara R. Morgan, of Aiken, for Respondent.


PER CURIAM:  Appellant was convicted of trafficking in methamphetamine and unlawful carrying of a pistol, and he was sentenced.  On appeal, Appellant argues that the trial court erred in sentencing him for second offense trafficking under S.C. Code Ann. § 44-53-375(C)(1) when his prior drug conviction was for possession of a controlled substance.  We affirm.       

I.                  FACTS AND PROCEDURAL HISTORY

On December 28, 2001, Appellant, a commercial truck driver, was stopped at a weigh station on Interstate 20 in Aiken County, South Carolina.  Appellant told one of the officers that there was a gun in the cab of his truck.   In addition to a 9 millimeter pistol, the officer discovered .11 grams of cocaine and 21.99 grams of methamphetamine in the truck.  

Appellant was indicted for trafficking in methamphetamine, possession of cocaine, and unlawful carrying of a pistol.  He was tried on April 29, 2003 before the Honorable James C. Williams and a jury. 

Appellant was convicted of trafficking in methamphetamine and unlawful carrying of a pistol and was sentenced.  His drug related conviction was treated as a “second offense” for sentencing purposes, since Appellant had a prior conviction from Nevada for possession of a controlled substance.  The circuit court determined that the conviction would constitute a “second offense” as defined in S.C. Code Ann. § 44-53-470, thus rejecting Appellant’s argument that the prior conviction had to be a trafficking offense in order to trigger the “second offense” sentence pursuant to S.C. Code Ann. § 44-53-375(C)(1)(b).  This appeal follows.                             

II.               LAW/ANALYSIS

On appeal, Appellant argues the circuit court erred in sentencing him for second offense trafficking under S.C. Code Ann. § 44-53-375(C)(1) when his prior drug offense was for possession of a controlled substance.  Thus, the issue raised on appeal is the characterization of the trafficking conviction as a “second offense.”   

 South Carolina Code Ann. § 44-53-375(C) (2003) provides that any “person who knowingly sells, manufactures, delivers, purchases, or brings into this State  . . . ten grams or more of ice, crank, or crack cocaine . . . is guilty of a felony.”  If the amount is ten grams or more, but less than twenty-eight grams, and the conviction is a “second offense” as defined by statute, the defendant must be sentenced to imprisonment for not less than five years nor more than thirty years, and a $50,000 fine.  S.C. Code Ann. § 44-53-375(C)(1)(b).  Under S.C. Code Ann. § 44-53-470, an offense is considered a second offense if the defendant has a prior conviction under Title 44, Article 53 of the South Carolina Code of Laws, or under “any State or Federal statute relating to narcotic drugs, marihuana, depressant, stimulant, or hallucinogenic drugs.” 

Appellant argues that S.C. Code § 44-53-375(C)(1)(b) only applies when the defendant’s prior conviction is a “trafficking offense.”  Our court recently rejected this exact argument in State v. Dupree, 354 S.C. 676, 583 S.E.2d 437 (Ct. App. 2003).  In Dupree, the court noted that the language in § 44-53-375(C) “merely delineates offenses” and that there is no conflict between Sections 44-53-375(C)(1)(b) and 44-53-470.  Id.  The court concluded by holding that § 44-53-470 applies to § 44-53-375(C).  Id. 

Likewise, in  Thomas v. State, 319 S.C. 471, 465 S.E.2d 350 (1995), the court held that the marijuana trafficking statute and the statute defining “second or subsequent offense” as any drug offense were part of the same general law and could be read together without conflict.  The court further noted that “[t]he legislature could not have intended second or subsequent offenses under [§ 44-53-375(C)(1)] to include only . . . trafficking when there is a specific statute which defines second or subsequent offenses as any drug offense.”  Id.     

Thus, pursuant to the holdings in Dupree and Thomas, and based on Appellant’s prior conviction for possession of a controlled substance, the circuit court properly sentenced him as a second time offender under § 44-53-375(C)(1)(b).         

AFFIRMED.

GOOLSBY, HOWARD, and KITTREDGE, JJ., concur.