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2009-UP-195 - State v. Vilorio

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

State of South Carolina, Respondent,

v.

Laurentino Vilorio, Appellant.


Appeal From Greenville County
C. Victor Pyle, Jr., Circuit Court Judge


 Unpublished Opinion No. 2009-UP-195
Submitted April 1, 2009 – Filed May 6, 2009   


AFFIRMED


Appellate Defender Kathrine H. Hudgins, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, and Assistant Attorney General William M. Blitch, Jr., all of Columbia; and Solicitor Robert M. Ariail, of Greenville, for Respondent. 

PER CURIAM: Laurentino Vilorio was convicted of committing a lewd act on a minor and sentenced to fifteen years' imprisonment, suspended upon the service of five years.  Vilorio appeals his conviction and sentence, arguing the circuit court erred in allowing the State to amend the indictment at trial to expand the time frame of the offenses.  We affirm[1] pursuant to Rule 220(b), SCACR, and the following authorities:  S.C. Code Ann. § 17-19-100 (2003) (permitting judicial amendment of an indictment to comply with the proof offered at trial if the amendment does not change the nature of the offense charged); State v. Quarles, 261 S.C. 413, 417, 200 S.E.2d 384, 386 (1973) (requiring a showing of both prejudice and abuse of discretion to reverse an amendment of the time frame in an indictment); State v. Rush, 129 S.C. 43, 47, 123 S.E. 765, 766 (1924) (holding where "time [is] not of the essence of the offense charged," amending the time frame in an indictment does not change the nature of the offense); State v. Tumbleston, 376 S.C. 90, 101-02, 654 S.E.2d 849, 855 (Ct. App. 2007) (finding time frame is not material to committing a lewd act on a minor and enlarging the time frame of an indictment for this offense is not improper); State v. Guthrie, 352 S.C. 103, 108, 572 S.E.2d 309, 312 (Ct. App. 2002) (holding an indictment is sufficient if it "inform[s] the accused of the charge against him by listing the elements of the offense charged" and is "sufficiently specific to protect the accused against double jeopardy"). 

AFFIRMED.

SHORT, THOMAS, and GEATHERS, JJ., concur.


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