Cummings v. State, No. 21088

CourtUnited States State Supreme Court of South Carolina
Writing for the CourtPER CURIAM
Citation274 S.C. 26,260 S.E.2d 187
PartiesGordon Newell CUMMINGS, Jr., Respondent, v. The STATE of South Carolina, William D. Leeke, Department of Corrections, Appellants.
Docket NumberNo. 21088
Decision Date15 November 1979

Page 187

260 S.E.2d 187
274 S.C. 26
Gordon Newell CUMMINGS, Jr., Respondent,
v.
The STATE of South Carolina, William D. Leeke, Department of
Corrections, Appellants.
No. 21088.
Supreme Court of South Carolina.
Nov. 15, 1979.

Page 188

[274 S.C. 27] Atty. Gen. Daniel R. McLeod, Deputy Atty. Gen., Emmet H. Clair and Staff Atty. Corinne G. Russell, Columbia, for appellants.

T. Allen Legare, Jr., Charleston, for respondent.

PER CURIAM:

Respondent plead guilty to two (2) counts of possession with intent to distribute unlawful drugs arising from two (2) separate indictments. He was sentenced to four (4) years imprisonment on each indictment, the sentences to run consecutively. He did not appeal but subsequently filed an application for Post-Conviction Relief alleging that his sentence was cruel and unusual punishment. Following a hearing, the lower court agreed and rescinded the sentence as to one (1) indictment. The State appeals.

We have held on numerous occasions that the failure to object to proceedings below waives the presentation of those issues on appeal. Miller v. State, 269 S.C. 113, 236 S.E.2d 422 (1977); 7A West's S.C. Digest, Criminal Law, k 1042. An application for Post-Conviction Relief is not a substitute for an appeal and errors which could have been reviewed on appeal may not be asserted for the first time, or reasserted in Post-Conviction proceedings. S.C. Code of Laws (1976), Section 17-27-[274 S.C. 28] 20(b); Simmons v. State,264 S.C. 417, 215 S.E.2d 883 (1975).

At trial, respondent failed to object to the imposition of the sentence and, therefore, waived the right to have that sentence reviewed on direct appeal, or to raise such issue on Post-Conviction absent an allegation of ineffective assistance of counsel.

Additionally, in the lower court, respondent argued that remarks by the trial judge prior to sentencing evidenced prejudice and resulted in the imposition of an excessive sentence. It is sufficient to note that the sentences imposed were within the statutory limitations and there were no facts supporting an allegation of prejudice against the respondent.

Accordingly, the order of the lower court is reversed and the original sentence reinstated.

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10 practice notes
  • Seabrook Island Property v. Berger, No. 4012.
    • United States
    • United States State Supreme Court of South Carolina
    • July 5, 2005
    ...fees, even though the trial judge did not "receiv[e] evidence as to the value of the services rendered." Id. at 25-26, 260 S.E.2d at 187. The Farmers court As a general rule, the amount of attorney fees to be awarded in a particular case is within the discretion of the trial judge......
  • Drayton v. Evatt, No. 23852
    • United States
    • United States State Supreme Court of South Carolina
    • June 9, 1993
    ...reviewed on direct appeal. Peeler v. State, 277 S.C. 70, 283 S.E.2d 826 (1981); see also Cummings v. State, 274 S.C. [312 S.C. 9] 26, 260 S.E.2d 187 (1979); Ashley v. State, 260 S.C. 436, 196 S.E.2d 501 (1973); Sellers v. Boone, 261 S.C. 462, 200 S.E.2d 686 (1973). Issues that could have be......
  • Fortune v. State, Appellate Case No. 2016-002231
    • United States
    • United States State Supreme Court of South Carolina
    • December 4, 2019
    ...may present it now only to support a claim of ineffective representation, not as a separate ground for relief."); Cummings v. State , 274 S.C. 26, 28, 260 S.E.2d 187, 188 (1979) ("At trial, respondent failed to object to the imposition of the sentence and, therefore, waived the ri......
  • Wilson v. Ozmint, No. 03-3.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • February 17, 2004
    ...appeal," or "in post-conviction absent an allegation of ineffective assistance of counsel." See, e.g., Cummings v. State, 274 S.C. 26, 260 S.E.2d 187, 188 (1979); Miller v. State, 269 S.C. 113, 236 S.E.2d 422 (1977) (same). The preclusive effect of an invitation of error is, ......
  • Request a trial to view additional results
10 cases
  • Seabrook Island Property v. Berger, No. 4012.
    • United States
    • United States State Supreme Court of South Carolina
    • July 5, 2005
    ...fees, even though the trial judge did not "receiv[e] evidence as to the value of the services rendered." Id. at 25-26, 260 S.E.2d at 187. The Farmers court As a general rule, the amount of attorney fees to be awarded in a particular case is within the discretion of the trial judge......
  • Drayton v. Evatt, No. 23852
    • United States
    • United States State Supreme Court of South Carolina
    • June 9, 1993
    ...reviewed on direct appeal. Peeler v. State, 277 S.C. 70, 283 S.E.2d 826 (1981); see also Cummings v. State, 274 S.C. [312 S.C. 9] 26, 260 S.E.2d 187 (1979); Ashley v. State, 260 S.C. 436, 196 S.E.2d 501 (1973); Sellers v. Boone, 261 S.C. 462, 200 S.E.2d 686 (1973). Issues that could have be......
  • Fortune v. State, Appellate Case No. 2016-002231
    • United States
    • United States State Supreme Court of South Carolina
    • December 4, 2019
    ...may present it now only to support a claim of ineffective representation, not as a separate ground for relief."); Cummings v. State , 274 S.C. 26, 28, 260 S.E.2d 187, 188 (1979) ("At trial, respondent failed to object to the imposition of the sentence and, therefore, waived the ri......
  • Wilson v. Ozmint, No. 03-3.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • February 17, 2004
    ...appeal," or "in post-conviction absent an allegation of ineffective assistance of counsel." See, e.g., Cummings v. State, 274 S.C. 26, 260 S.E.2d 187, 188 (1979); Miller v. State, 269 S.C. 113, 236 S.E.2d 422 (1977) (same). The preclusive effect of an invitation of error is, ......
  • Request a trial to view additional results

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