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2004-UP-267 - State v. Dawson

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.

Edward N. Dawson,        Appellant.


Appeal From Charleston County
A. Victor Rawl, Circuit Court Judge


Unpublished Opinion No. 2004-UP-267
Submitted February 20, 2004 – Filed April 19, 2004


AFFIRMED


Assistant Appellate Defender Tara S. Taggart, of the South Carolina Office of Appellate Defense, of Columbia, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Attorney General David Spencer, all of Columbia; and Solicitor Ralph E. Hoisington, of Charleston; for Respondent.

PER CURIAM:  Edward N. Dawson seeks a remand for re-sentencing on the charge of possession of a stolen motor vehicle, claiming for the first time on appeal that he was “entitled to be sentenced in open court rather than simply in writing” for that offense.  We affirm. [1]

A jury convicted Dawson of second-degree burglary and possession of a stolen vehicle.  On October 23, 2002, the day after the trial ended and while Dawson was present in the courtroom with his counsel during a sentencing proceeding for both convictions, the trial judge concluded:  “Sentence of the Court is life without parole, based on 17-25-45.” [2]   Neither the solicitor nor defense counsel brought to the attention of the trial judge any concerns regarding a sentence for the vehicle offense. 

Two days later, the trial judge signed the sentencing orders in the case.  The orders formally declared to Dawson the legal consequences of his convictions and committed him to the State Department of Corrections for concurrent terms of life imprisonment for the burglary offense and five years for the vehicle offense.  See 21A Am. Jur. 2d Criminal Law §791, at 54-55 (1998) (“In a legal sense, sentence is ordinarily synonymous with judgment and denotes the judgment of the court which formally declares to the accused the legal consequences of his or her conviction . . . .”); see also S.C. Code Ann. § 16-21-80(2) (2003) (authorizing a sentence of up to five years for possession of a stolen vehicle worth more than $1,000 but less than $5,000).  Both the solicitor and defense counsel also signed the sentencing order.  Defense counsel, however, filed no post-trial motions regarding the vehicle offense and Dawson’s sentence therefor.  See SCRCrimP, Rule 29(a) (“[P]ost trial motions shall be made within ten (10) days after the imposition of the sentence.”).

We recognize that a defendant has the right to be present at the time of sentencing.  21 Am. Jur. 2d Criminal Law § 798, at 62 (1998).  In this case, Dawson was present at his sentencing proceeding, a rather lengthy one, and he fully participated in that proceeding, even addressing the trial judge when given the opportunity to do so.  Dawson’s sole contention on appeal is that he was “entitled to be sentenced in open court rather than simply in writing.” 

Because Dawson failed at the sentencing hearing to raise the issue of the trial judge’s omitting to announce his sentence for the vehicular offense and because he also failed to assert any alleged error in his sentencing within ten days after the trial judge imposed the sentence, the issue has not been preserved for our review.  See State v. Gaster, 349 S.C. 545, 564 S.E.2d 87 (2002) (holding even constitutional issues must be raised to and ruled on by the trial court to be preserved for review); State v. Johnston, 333 S.C. 459, 510 S.E.2d 423 (1999) (noting subject matter jurisdiction is generally conferred by a proper indictment and holding that an objection to the sentence imposed, including even the argument that the sentence exceeded the statutory maximum, did not involve subject matter jurisdiction and must have been raised to and ruled upon by the trial court to be preserved for direct appeal); State v. Shumate, 276 S.C. 46, 275 S.E.2d 288 (1981) (holding a defendant’s failure to timely object to or seek modification of his sentence from the trial judge precludes the defendant from presenting an objection for the first time on appeal); cf. State v. Williams, 292 S.C. 231, 355 S.E.2d 861 (1987) (stating a defendant’s objection to being tried in his absence must be raised at the first opportunity).

AFFIRMED.

GOOLSBY, HOWARD, AND KITTREDGE, JJ., CONCUR.


[1]   We decide this case without oral argument pursuant to Rule 215, SCACR.

[2]   See S.C. Code Ann. § 17-25-45 (2003) (imposing a sentence of life in prison without parole for recidivists convicted of certain enumerated offenses).