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2008-UP-680 - State v. Suber

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.

Clifton Suber, Appellant.


Appeal From Richland County
 James R. Barber, Circuit Court Judge


Unpublished Opinion No. 2008-UP-680
Submitted November 1, 2008 – Filed December 9, 2008   


REMANDED


Appellate Defender M. Celia Robinson, of Columbia, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Assistant Attorney General Christina J. Catoe, and Solicitor Warren Blair Giese, all of Columbia; for Respondent.

PER CURIAM: Clifton Suber pled guilty to three counts of uttering a fraudulent check of more than $1,000 and one count of bank fraud. The plea judge sentenced Suber to ten years on one of the fraudulent check charges; a consecutive term of ten years on another, suspended with five years probation; and concurrent sentences of ten years suspended during probation on the remaining fraudulent check charge and five years suspended during probation on the bank fraud charge.  The plea judge further directed Suber would receive no credit for time served. Suber appeals, arguing he is entitled to credit for time spent in custody awaiting trial and/or sentence.  We remand.

II.  FACTS

Suber pled to the above Richland County charges on January 30, 2007.  During the plea hearing, he informed the judge he had been in jail “on these charges” for about a year.  Defense counsel corrected that Suber “was in on a Lexington County fraudulent check charge also,” but stated the charges were “all related.”  The Lexington County charge resulted in Suber’s imprisonment for a term of one year and six months in the Department of Corrections, which he began serving on August 30, 2006.  She explained that prior to August 30, 2006, Suber had been incarcerated “about three months” on both the Richland and Lexington County charges.  She requested the court consider backdating Suber’s sentence to August 30, 2006, “and possibly giving him credit for the time prior to that” of “roughly” three months.  The plea judge stated, “I assume whatever he has done since August he is getting credit for on the existing sentence.”  Defense counsel confirmed that he was.  The plea judge then sentenced Suber as described above and concluded with the statement, “No credit for time served.”  This appeal followed.

III.  LAW/ANALYSIS

On appeal, Suber contends the plea judge erred in ruling he would receive no credit for time spent in custody awaiting trial and/or sentence.  Specifically, Suber asserts it is apparent from the record that he was entitled to credit for time spent in custody prior to his commencement of serving the one year and six month sentence on August 30, 2006, i.e. “about three months.”  

Section 24-13-40 of the South Carolina Code provides, in pertinent part:

In every case in computing the time served by a prisoner, full credit against the sentence shall be given for time served prior to trial and sentencing.   Provided, however, that credit for time served prior to trial and sentencing shall not be given:  (1) when the prisoner at the time he was imprisoned prior to trial was an escapee from another penal institution; or (2) when the prisoner is serving a sentence for one offense and is awaiting trial and sentence for a second offense in which case he shall not receive credit for time served prior to trial in a reduction of his sentence for the second offense.

S.C. Code Ann. § 24-13-40 (2007) (emphasis in original).  “Section 23-13-40 mandates a prisoner be given credit for all time served prior to trial unless one of two exceptions exist:  1) either the prisoner was an escapee or 2) the prisoner was already serving a sentence on one offense.”  Allen v. State, 339 S.C. 393, 395, 529 S.E.2d 541, 542 (2000).  The matter of credit for time served under this statute is not discretionary with the trial court.  State v. McCord, 349 S.C. 477, 487, 562 S.E.2d 689, 694 (Ct. App. 2002). 

Because Suber was neither an escapee nor serving any sentence during the approximate three-month period he was incarcerated prior to his August 30 imprisonment on the Lexington County charge, he is entitled to credit for time served on the Richland County charges.  See Allen, 339 S.C. at 395-96, 529 S.E.2d at 542 (holding where appellant pled to five offenses resulting from two separate arrests, he was entitled to credit for time served on first charges from time he was re-arrested on second charges and bond was revoked on first charges, as he was clearly in custody on all charges from the date of re-arrest);  Blakeney v. State, 339 S.C. 86, 88, 529 S.E.2d 9, 10-11 (2000) (noting our courts have held “‘time served’ in § 24-13-40 means the time during which a defendant is in pre-trial confinement and charged with the offense for which he is sentenced (so long as he is not serving time for a prior conviction).”) (emphasis in original).

The record before us does not contain any evidence of the exact amount of time Suber spent in jail awaiting trial and sentencing prior to imposition of his Lexington sentence.  Accordingly, we remand for the plea court to determine the exact amount of time Suber served on the Richland charges prior to commencement of his Lexington sentence. 

REMANDED.[1]

HEARN, C.J., KONDUROS, J., and GOOLSBY, A.J., 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.