Fewell v. State, 20234

• Decision Date: 08 June 1976
• Docket Number: No. 20234,20234
• Court: South Carolina Supreme Court
• Parties: Ricky FEWELL, Appellant, v. STATE of South Carolina and William D. Leeke, Director, South Carolina Department of Corrections, Respondents.

Page 853

225 S.E.2d 853

267 S.C. 17

Ricky FEWELL, Appellant, v. STATE of South Carolina and William D. Leeke, Director, South Carolina Department of Corrections, Respondents.

No. 20234.

Supreme Court of South Carolina.

June 8, 1976.

W. Clarkson McDow, Jr., Rock Hill, and Roy T. Stuckey, Columbia, for appellant.

Atty. Gen. Daniel R. McLeod and Asst. Attys. Gen. Emmet H. Clair and Stephen T. Savitz, Columbia, for respondents.

LEWIS, Chief Justice:

Appellant, a first offender, was convicted and sentenced for violation of the South Carolina law regulating controlled substances and dangerous drugs (Code Supplement, Section 32--1510.49). He seeks, in his application for post conviction relief, to have his sentence set aside and that the cause be remanded for resentencing, on the ground that the sentence imposed was greater than that permitted by statute for the offense of which he was convicted. This appeal is from an order of the lower court denying the relief sought.

A jury returned a verdict of 'guilty' against appellant under an indictment charging that he

'did wilfully and unlawfully have in his possession sixty (60) full hits of LSD and some broken hits in violation of S.C. Dangerous Drugs and Narcotics Act.'

The trial judge construed the verdict as finding appellant guilty of possession of LSD with intent to distribute and imposed a sentence of ten (10) years under Code Supplement, Section 32--1510.49(b)(1) which sets the sentence for a first offense thereunder at 'not more than fifteen years or a fine of not more than twenty-five thousand dollars, or both.' Appellant contends, however, that he was indicted and convicted for the lesser offense of simple possession of LSD under Code Supplement, Section 32--1510.49(c&d) which carries a sentence for the first offense of not more than two years or a fine of not more than five thousand dollars, or both.

We agree with appellant that the above quoted language from the indictment did not charge him with possession of LSD with intent to distribute but rather with the lesser offense of possession. A necessary element of the offense for which appellant was sentenced is that the person charged have possession 'with intent to . . . distribute . . . a controlled substance.' Code Supplement, Section 32--1510.49(a)(1).

Nowhere in the indictment is the charge of possession 'with intent to distribute' set forth in the language of the statute; nor is there any language from which it might reasonably be inferred that it was intended to include a charge of such offense. The quoted portion of the indictment does, however, clearly charge the offense of simple possession.

As a general rule, a defendant must be tried and, if convicted sentenced only upon the charges set forth or necessarily included in the terms of the indictment. 41 Am.Jur. (2d), Indictments and Informations, Section 312; State v. Tabory, 262 S.C. 136, 202 S.E.2d 852.

Since the indictment in this case contained only the charge of possession of LSD, the verdict of 'guilty' referred only to such charge. Therefore, appellant could only be sentenced for that offense and not for the greater offense of possession with intent to distribute.

The State (respondent) contends...