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2005-UP-042 - State v. Mixson

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.

Herber E. Mixson, Appellant.


Appeal From Hampton County
 Alexander S. Macaulay, Circuit Court Judge


Unpublished Opinion No.  2005-UP-042
Submitted December 1, 2004 – Filed January 18, 2005


AFFIRMED


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

Attorney General Henry D. McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, and Assistant Attorney General Harold M. Coombs, Jr., all of Columbia; and Solicitor Randolph Murdaugh, III, of Hampton, for Respondent.

PER CURIAM:  The issue on appeal is whether a magistrate exceeded her authority by imposing fines, administrative fees, and court costs when she sentenced a defendant to consecutive jail terms exceeding 90 days on fraudulent check charges.  We affirm. [1]

FACTS/PROCEDURAL BACKGROUND

On October 21, 2002, Herber E. Mixson was sentenced in magistrate’s court to 44 consecutive 30-day sentences on fraudulent check charges.  After serving the first three sentences, Mixson had the option of avoiding further incarceration by paying the amount of the checks plus fines, assessments, administrative costs, and service charges totaling $166 per warrant and conviction.

Mixson appealed to the circuit court, contending that, under South Carolina Code section 22-3-550(B), the magistrate was required to set an amount of restitution in lieu of any sentence over 90 days and this amount could not include court costs, assessments, and fines. [2]   The circuit court affirmed the magistrate’s sentences.

Pursuant to Anders v. California, [3] Mixson’s appellate counsel filed an appeal and a petition to be relieved as counsel.  This court denied counsel’s petition to be relieved and ordered the parties to brief the issues of whether the magistrate violated section 22-3-550(B) by (1) ordering Mixson to serve consecutive jail terms exceeding 90 days or pay fines in addition to restitution, and (2) ordering Mixson to serve consecutive jail terms exceeding 90 days or, in the alternative, to pay administrative fees and costs in addition to restitution.

LAW/ANALYSIS

During oral argument before the circuit court and in his appeal to this court, Mixson argued that the language in section 22-3-550(B) requiring a magistrate to “specify an amount of restitution in damages at the time of sentencing as an alternative to any imprisonment of more than ninety days which is lawfully imposed” precludes a magistrate from fining, assessing, or charging a defendant after the first three offenses. [4]   We disagree. 

Nothing in section 22-3-550(B) limits a magistrate’s authority to levy fines, assessments, and court costs on defendants who receive three or more consecutive sentences for fraudulent check violations.  This section does not specify that restitution is to be the sole consequence of an alternative to imprisonment of more than 90 days; rather, it merely requires magistrates to grant persistent fraudulent check offenders the opportunity to shorten the time they must spend in confinement.

We further agree with the circuit court that section 22-3-550 must be read in pari materia with other statutes that address the jurisdiction of the magistrate’s court over fraudulent check charges. [5]   In particular, South Carolina Code section 34-11-90 provides that a fraudulent check charge “must be tried exclusively in magistrates court” if the amount of the instrument is $1,000 or less. [6]  

Paragraph (a) of section 34-11-90 sets minimum and maximum fines for a magistrate to impose for fraudulent check convictions if the offender is not sentenced to imprisonment. [7]   Under paragraph (d) of this section, a defendant convicted of drawing and uttering a fraudulent check or other instrument “shall pay in addition to the fine all reasonable court costs accruing, not to exceed forty-one dollars.” [8]  

Similarly, section 14-1-207(A) mandates that “a person who is convicted of, pleads guilty or nolo contendere to, or forfeits bond for an offense tried in magistrate’s court must pay an amount equal to 100 percent of the fine imposed as an assessment.” [9]

Considering all these statutes together, as we must, we hold the requirement in section 22-3-550 for a magistrate to specify an amount of restitution as an alternative to any imprisonment of more than 90 days does not restrict the authority of the magistrate to order payment of fines, assessments, and court costs in these cases.  Indeed, to hold otherwise would undermine the legislative mandate that these surcharges be imposed.

AFFIRMED.

HEARN, C.J., GOOLSBY and WILLIAMS, JJ., concur.


[1]   Because oral argument would not aid the court in resolving the issues on appeal, we decide this case without oral argument pursuant to Rule 215, SCACR.

[2]   See S.C. Code Ann. § 22-3-550(B) (Supp. 2004) (concerning time limitations for consecutive sentences imposed by magistrates).

[3]   386 U.S. 738 (1967).

[4]   S.C. Code Ann. § 22-3-550(B) (Supp. 2004).  Mixson conceded the magistrate could require him to pay the amounts of the fraudulent checks and up to a $25 service charge per check as restitution.  See id. § 34-11-70(a)(3) (Supp. 2004) (providing for a service charge “solely to compensate the payee of [a fraudulent] instrument for incurred expenses in processing the dishonored instrument”).  The legislature amended this section in 2002 to increase the maximum amount of the charge to $30.

[5]   See Grant v. City of Folly Beach, 346 S.C. 74, 79, 551 S.E.2d 229, 231 (2001) (stating that statutes dealing with the same subject should be construed together to produce a harmonious result).

[6]   S.C. Code Ann. § 34-11-90 (Supp. 2004) (emphasis added).

[7]   Id. § 34-11-90(a)(1) through (4).  The ranges of the fines vary according to the amount of the instrument and whether the conviction is a first conviction or a second or subsequent conviction.

[8]   Id. § 34-11-90(d) (emphasis added).

[9]   Id. § 14-1-207(A) (emphasis added).