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2009-UP-220 - State v. Tolen

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.

Frank Tolen, Jr., Appellant.


Appeal From Saluda County
 William P. Keesley, Circuit Court Judge


Unpublished Opinion No. 2009-UP-220
Submitted April 1, 2009 – Filed May 26, 2009  


AFFIRMED


Appellate Defender Kathrine H. Hudgins, of Columbia, 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 Julie M. Thames, all of Columbia; and Solicitor Donald V. Myers, of Lexington, for Respondent.

PER CURIAM:  Frank Tolen, Jr. appeals his conviction and sentence of life without parole for armed robbery and possession of a pistol by a person convicted of a violent crime.  Tolen argues the trial court lacked subject matter jurisdiction to hear his second trial and his conviction and sentence violate the constitutional prohibition against double jeopardy.  We affirm[1] pursuant to Rule 220(b), SCACR, and the following authorities:  State v. Santiago, 370 S.C. 153, 163, 634 S.E.2d 23, 28 (Ct. App. 2006)  (“As a general rule, if an issue was not raised and ruled upon below, it will not be considered for the first time on appeal.”); State v. Nelson, 336 S.C. 186, 195, 519 S.E.2d 786, 790-91 (1999) (finding “where a verdict is set aside by a defendant’s own motion and a new trial granted, the defendant may be again tried for the offense”).

AFFIRMED.

Hearn, C.J., Pieper and Lockemy, JJ., concur.


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