Hair v. State, 23414

• Decision Date: 05 August 1991
• Docket Number: No. 23414,23414
• Court: South Carolina Supreme Court
• Parties: William Steven HAIR, Petitioner, v. STATE of South Carolina, Respondent.

Page 332

406 S.E.2d 332

305 S.C. 77

William Steven HAIR, Petitioner, v. STATE of South Carolina, Respondent.

No. 23414.

Supreme Court of South Carolina.

Submitted Jan. 22, 1991.

Decided June 10, 1991.

Rehearing Denied Aug. 5, 1991.

Assistant Appellate Defender Robert M. Dudek, of S.C. Office of Appellate Defense, Columbia, for petitioner.

Attorney Gen. T. Travis Medlock, Chief Deputy Atty. Gen., Donald J. Zelenka, and Staff Atty. Marshall Prince, Columbia, for respondent.

HARWELL, Justice:

Petitioner William Steven Hair pled guilty to three counts of second degree burglary. Petitioner received a three year sentence on the first count and a consecutive four year sentence on the second count. On the third count, petitioner received a consecutive sentence of fifteen years; this sentence was to be suspended upon service of five years and five years probation. Petitioner did not take a direct appeal of his conviction. We granted petitioner's petition for writ of certiorari following the denial of his application for Post Conviction Relief (PCR). We reverse.

The sole issue on appeal is whether the PCR judge erred in finding that petitioner must serve one-third of his sentence before being eligible for parole. Petitioner argues that he should be eligible for parole after serving one-fourth of his sentence. We agree.

The offense of second degree burglary is codified in S.C. Code Ann. § 16-11-312 (1989), which provides two definitions of the offense, (A) and (B). Second degree burglary under subsection (A) is defined as entering a dwelling without consent and with intent to commit a crime therein. Under subsection (B), a person is guilty of second degree burglary if he enters a building without consent and with intent to commit a crime therein, and the burglary involves one of several enumerated aggravating circumstances. The State has stipulated that petitioner was sentenced under subsection (A). Subsection (C) of the statute provides that burglary under either subsection (A) or (B) is punishable by imprisonment for not more than fifteen years, provided that no person convicted of second degree burglary will be eligible for parole until service of one-third of the sentence.

Petitioner contends that the 1986 Omnibus Crime Bill, which was a comprehensive reform package enacted after the enactment of Section 16-11-312, provides him parole eligibility after serving one-fourth of his sentence. The Omnibus Crime Bill makes the length of the sentence that must be served before a prisoner is eligible for parole dependent on whether the offense is classified as violent or non-violent. S.C.Code Ann. § 24-21-610 (1989). While second degree burglary under Section 16-11- 312(B) is specifically listed as a violent offense, second degree burglary under Section 16-11-312(A) is not. S.C.Code Ann. § 16-1-60 (1989). Because second degree burglary under Section 16-11-312(A) is not listed as a violent offense under Section 16-1-60, it is classified as a non-violent offense. S.C.Code Ann. § 16-1-70 (1989).

Petitioner argues that Section 24-21-610, which sets parole eligibility at one-fourth for non-violent crimes, should supersede Section 16-11-312(C), which provides one-third parole eligibility for all burglary convictions. We find that these two statutory provisions are in direct conflict; they both speak to eligibility for parole for second degree burglary, but each provides for a different amount of time which a prisoner must serve before he is eligible for parole. The law clearly provides that if two statutes are in conflict, the latest statute passed should prevail so as to repeal the earlier statute to the extent of the repugnancy. Yahnis Coastal, Inc. v. Stroh Brewery Co., 295 S.C. 243, 368 S.E.2d 64 (1988). Furthermore, when a statute is penal in nature, it is construed strictly against the State and in favor of the defendant. State v. Cutler, 274 S.C. 376, 264 S.E.2d 420 (1980). Since the provisions of the Omnibus Crime Bill were enacted after Section 16-11-312, we conclude that subsection (C) of Section 16-11-312 has been implicitly repealed.

If the legislature had wanted to exclude burglary in the second degree under Section 16-11-312(A) from the one-fourth parole eligibility classification, it could have done so by classifying it as a violent offense subject to one-third parole eligibility, as it did for burglary in the second degree under Section 16-11-312(B). Because the legislature chose not to do this, we find its intent to be clear; Section 24-21-610 was intended to replace Section 16-11-312(C) regarding the parole eligibility of a prisoner convicted of second degree burglary under Section 16-11-312(A). ¹ Petitioner should be eligible for parole after he serves one-fourth of his sentence. Accordingly, the PCR judge's ruling is

REVERSED.

CHANDLER and FINNEY, JJ., concur.

GREGORY, C.J., and TOAL, J., dissenting in separate opinion.

TOAL, Justice (dissenting):

I respectfully dissent. I would affirm the PCR judge's conclusion that petitioner is not eligible for parole until he has served one-third of his sentence.

Petitioner Hair pled guilty to three counts of second degree burglary. The offense of second degree burglary is codified in S.C.Code Ann. § 16-11-312 (1989), which provides two definitions of the offense, contained within subsections (A) and (B). Second degree burglary under subsection (A) is defined as entering a dwelling without consent and with intent to commit a crime therein. Under subsection (B), a person is guilty of second degree burglary if he enters a building without consent and with intent to commit a crime therein, and the burglary involves one of several enumerated aggravating circumstances. The State has stipulated that petitioner was sentenced under subsection (A). Subsection (C) of the statute provides that burglary under either subsection (A) or (B) is punishable by imprisonment for not more than fifteen years, provided that no person convicted of second degree burglary will be eligible for parole until service of one-third of the sentence.

Hair contends that the 1986 Omnibus Crime Bill, which was a comprehensive reform package enacted after the passage of § 16-11-312, provides him parole eligibility after serving only one-fourth of his sentence. The Omnibus Crime Bill makes the length of the sentence that must be served before a prisoner is eligible for parole dependent on whether the offense is classified as violent or nonviolent. S.C.Code Ann. § 24-21-610 (1989). While second degree burglary under Section 16-11-312(B ) is specifically listed as a violent offense, second degree burglary under Section 16-11-312(A ) is not. S.C.Code Ann. § 16-1-60 (1989). Because second degree burglary under Section 16-11-312(A) is not listed as a violent offense under Section 16-1-60, it is classified as a nonviolent offense. S.C.Code Ann. § 16-1-70 (1989).

Hair argues § 24-21-610 (1989) of the Omnibus Crime Bill mandates that he is parole eligible after he has served one-fourth of his sentence and that the parole eligibility provision contained within § 16-11-312 (1989) stands implicitly repealed by § 24-21-610. Section 24-21-610 (1989) specifically provides, in pertinent part:

[F]or any [crime not classified as a violent crime under § 16-1-60] the prisoner shall have served at least one-fourth of the term of a sentence or if sentenced to life imprisonment or imprisonment for any period in excess of forty years, has served at least ten years [before he may be eligible for parole].

(emphasis added).

This Court stated in Lewis v. Gaddy, 254 S.C. 66, 70, 173 S.E.2d 376, 378 (1970): "[i]t is, of course, well settled that repeal by implication is not favored, and a law should not be construed as impliedly repealing a prior law unless no other reasonable construction can be applied." Our Court of Appeals has properly stated the rule thusly: "[r]epeal by implication is not favored and can be found only where no reasonable construction can be given to two statutes, other than that they are in irreconcilable conflict with each other." Busby v. State Farm Mut. Auto. Ins. Co., 280 S.C. 330, 334, 312 S.E.2d 716, 719 (Ct.App.1984).

This Court has also held the following, which is directly applicable to the instant case:

It is well established in this State that statutes of a specific nature are not to be considered as repealed in whole or in part by a later general statute unless there is a direct reference to the former statute or the intent of the legislature to do so is explicitly implied therein.

Although this Court has apparently not been confronted with the question of the repeal of a special act by a general act in the context of a criminal statute, we find the construction rule equally applicable since the underlying reason for the rule applies with as much force in criminal matters. The rule of statutory construction, that repeal by implication is not favored and will not be indulged if there is any other reasonable construction, is applicable to statutes relating to crimes.

Strickland v. State, 276 S.C. 17, 19-20, 274 S.E.2d 430, 432 (1981) (citations omitted).

Here, §§ 24-21-610 and 16-11-312 can be read together and are not expressly in conflict. The § 24-21-610 requirement that a prisoner serve at least one-fourth of his sentence before becoming eligible for parole is not irreconcilable with the § 16-11-312 mandate that a prisoner serve one-third of his sentence before becoming parole eligible. I read the Omnibus Crime Bill language of § 24-21-610 as establishing a "floor" requirement of time served before parole eligibility may become possible. Nothing in § 24-21-610 prohibits the legislature from requiring that persons convicted of certain "nonviolent" crimes serve more than one-fourth of their sentence before becoming parole eligible. To reach a conclusion otherwise would ignore the existence of the words "at least" in § 24-21-610.

I became convinced of this harmonious...