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2008-UP-312 - In the Interest of Gavin N.

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


In the Interest of Gavin N., a minor under the age of eighteen, Appellant.


Appeal From Florence County
 A. E. “Gene” Morehead, III, Family Court Judge


Unpublished Opinion No. 2008-UP-312
Submitted April 1, 2008 – Filed June 20, 2008


AFFIRMED


Appellate Defender LaNelle C. DuRant, of Columbia, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Senior Assistant Attorney General Harold M. Coombs, Jr., of Columbia; and Solicitor Edgar Lewis Clements, III, of Florence, for Respondent.

PER CURIAM: Appellant appeals the family court’s order finding him guilty of two counts of assault with intent to commit criminal sexual conduct (ACSC) in the first degree.  We affirm.[1]

FACTS

On August 10, 2006, Appellant was brought before the family court for trial on the following charges:  (1) two counts of first degree burglary; (2) two counts of first degree ACSC; (3) two counts of third degree ACSC; (4) three counts of assault and battery of a high and aggravated nature (ABHAN); (5) two counts of strong arm robbery; (6) three counts of petit larceny; (7) one count of attempted strong arm robbery; and (8) three counts of kidnapping.  Before the trial commenced, Appellant pled guilty to all charges except the four ACSC charges.  The family court accepted Appellant’s pleas, postponed sentencing Appellant on the pleaded offenses until after the trial on the remaining offense concluded, and proceeded to conduct Appellant’s trial on the remaining offenses.

At the conclusion of the State’s case in chief, Appellant’s attorney moved to dismiss the remaining charges on the ground of double jeopardy.  Appellant’s attorney argued “some of these counts – the testimony offered and the allegations made in the counts seem to [mirror] what he’s (sic) already pled to . . . .”  The family court ruled “[d]ouble jeopardy is not attached.”  Ultimately, the family court found Appellant guilty of both counts of first degree ACSC and dismissed both counts of third degree ACSC.

LAW/ANALYSIS

Appellant argues the trial court violated the double jeopardy clause by finding him guilty of two counts of ACSC because he had pleaded guilty to ABHAN under the same set of facts.  We disagree.

In State v. Coleman, 365 S.C. 258, 262-63, 616 S.E.2d 444, 446 (Ct. App. 2005) (citation omitted), this court stated the purpose of the double jeopardy clause:

The Double Jeopardy Clauses of the United States and South Carolina Constitutions protect citizens from being twice placed in jeopardy of life or liberty. See U.S. Const. amend. V (“No person shall be . . . subject for the same offence to be twice put in jeopardy of life or limb . . . .”); S.C. Const. art. I, § 12 (“No person shall be subject for the same offense to be twice put in jeopardy of life or liberty . . . .”). Under the law of double jeopardy, a defendant may not be prosecuted for the same offense after an acquittal, a conviction, or an improvidently granted mistrial.

The Supreme Court of the United States has held the Double Jeopardy Clause affords defendants three protections:

[It] ‘protects against a second prosecution for the same offense after acquittal.  It protects against a second prosecution for the same offense after conviction.  And it protects against multiple punishments for the same offense.’  Where consecutive sentences are imposed at a single criminal trial, the role of the constitutional guarantee is limited to assuring that the court does not exceed its legislative authorization by imposing multiple punishments for the same offense.  Where successive prosecutions are at stake, the guarantee serves ‘a constitutional policy of finality for the defendant’s benefit.’ That policy protects the accused from attempts to relitigate the facts underlying a prior acquittal, [] and from attempts to secure additional punishment after a prior conviction and sentence.

Brown v. Ohio, 432 U.S. 161, 165-66 (1977) (internal citations omitted).  It is well established that ABHAN is a lesser included offense of ACSC.  See State v. Elliott, 346 S.C. 603, 607, 552 S.E.2d 727, 729 (2001) (overruled on other grounds).

In Ohio v. Johnson, 467 U.S. 493 (1984), the Supreme Court of the United States addressed the implications of the Double Jeopardy Clause when a defendant pleads guilty to a lesser included offense.  The court stated “[t]he acceptance of a guilty plea to lesser included offenses while charges on the greater offenses remain pending, moreover, has none of the implications of an ‘implied acquittal’ which results from a verdict convicting a defendant on lesser included offenses rendered by a jury charged to consider both greater and lesser included offenses.”  Id. at 501-2.  The court found that prosecution of the greater offenses was not barred by the Double Jeopardy Clause and, specifically held “[w]hile the Double Jeopardy Clause may protect a defendant against cumulative punishments for convictions on the same offense, the Clause does not prohibit the State from prosecuting [a defendant] for such multiple offenses in a single prosecution.”  Id. at 500. 

Here, Appellant pleaded guilty to lesser offenses.  The trial court accepted the pleas and held the matter of sentencing in abeyance until Appellant was tried for the remaining offenses.  Immediately following the acceptance of the guilty pleas, the trial for the remaining charges was conducted.  At the conclusion of the trial, the trial court found Appellant guilty of both counts of first degree ACSC, dismissed both counts of third degree ACSC, and committed Appellant to the custody of the Department of Juvenile Justice not to exceed his twenty-first birthday.  Appellant was not subjected to cumulative punishments for convictions on the same offenses.  Accordingly, we find no violation of the Double Jeopardy Clause.

CONCLUSION

For the reasons stated above, the order of the circuit court is

AFFIRMED.

ANDERSON, SHORT, and THOMAS JJ., concur.


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