Kibler v. State, 20265
| Decision Date | 23 July 1976 |
| Docket Number | No. 20265,20265 |
| Citation | 267 S.C. 250,227 S.E.2d 199 |
| Court | South Carolina Supreme Court |
| Parties | Bobby KIBLER, Appellant, v. STATE of South Carolina, Respondent. |
William T. Toal, Roy T. Stuckey, Vance L. Cowden and Holcombe H. Thomas, Columbia, for appellant.
Atty. Gen. Daniel R. McLeod and Asst. Attys. Gen. Emmet H. Clair and Stephen T. Savitz, Columbia, for respondent.
Appellant seeks to collaterally attack his plea of Nolo contendere to the crime of housebreaking, a felony, for which he received a five (5) year sentence. The appeal comes to us by way of a denial of a post-conviction relief. We affirm.
On November 27, 1973 in the Court of General Sessions, Bobby Kibler, with the advice of counsel, pled Nolo contendere to a charge of housebreaking. January 25, 1974, he filed an application for Post Conviction Relief (supplemented with the aid of the University of South Carolina Corrections Clinic June 20, 1974) in the Court of Common Pleas for Newberry County. He sought to have his plea vacated and an opportunity to replead on the grounds that his plea was involuntary and that he had been denied effective assistance of counsel.
A hearing on the application was conducted October 2, 1974 at which both the complaining witness and the victim testified. The application was subsequently denied and dismissed by order dated January 31, 1975 of Judge Francis B. Nicholson. Timely Notice of Intention to Appeal was filed February 13, 1975.
Appellant first contends that the trial court did not have jurisdiction to convict and sentence appellant upon a plea of Nolo contendere as there is no authority in South Carolina for acceptance of such a plea to a felony. The Court of General Sessions has jurisdiction over the subject matter of the offense of housebreaking and had jurisdiction over the person of Bobby Kibler. Thus, the propriety of the entertainment of a plea of Nolo contendere is a non-jurisdictional matter. It is rather a matter of the willingness of the State to allow an accused the collateral benefits 1 of such a plea.
Section 17--504 of the 1962 South Carolina Code of Laws provides for pleas of Nolo contendere with the consent of the Court in all misdemeanors. Applying the maxim 'expressio unius est exclusio alterius' (expression of one thing is exclusion of another), the lack of any similar provision for felonies may be interpreted as limiting acceptance of Nolo contendere pleas to misdemeanors. Although this Court subscribes to this interpretation, we cannot say that the lower court committed prejudicial error of which the appellant is entitled to complain. There is no statutory prohibition against acceptance of such a plea; until this case, there has been no judicial denial of acceptance of such pleas; and, generally speaking, the federal courts as well as most state jurisdictions accept the Nolo plea in felony cases. See 89 A.L.R.2d 559.
A plea of Nolo contendere literally interpreted means 'I do not with to contend.' For all practical purposes it is a plea of guilty in so far as the consequences in the particular case in which it is pled. 'Like a plea of guilty (it) leaves open for review only the sufficiency of the indictment and waives all defenses other than that the indictment charges no offense.' State v. Stokes, 274 N.C. 408, 163 S.E.2d 770 (1968). (Of course, like a guilty plea, it is subject to attack on the issue of the plea being made knowingly and voluntarily).
Appellant does not question the sufficiency of the indictment but seeks to vacate his plea on the grounds that the Court had no authority to accept a Nolo contendere plea to a felony and therefore had no jurisdiction over his person. We find no merit in his contentions. However, as the benefits of a Nolo contendere plea as opposed to a guilty plea accrue primarily to the accused, this Court feels that the proper procedure for our lower courts to follow is to refrain from accepting pleas of Nolo contendere in felony cases until such are authorized by our legislature. For reasons heretofore stated, we see no error in the trial judge's acceptance of the plea in the instant case nor any prejudice suffered by appellant. There is no question but that the Court had both subject matter and In personam jurisdiction.
Appellant's next ground of appeal is that his alleged conduct did not constitute the crime charged. Once a plea of Nolo contendere is entered, it is beyond the province of the Court to make any determination of the accused's guilt. See State v. Barbour, 243 N.C. 265, 90 S.E.2d 388 (1955); Lott v. U.S., 367 U.S. 421, 81 S.Ct. 1563, 6 L.Ed.2d 940 (1961).
Appellant next contends that he was denied effective...
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Jackson v. State, 25181.
...the PCR judge erred. We agree. A plea of nolo contendere is for all practical purposes treated as a guilty plea. Kibler v. State, 267 S.C. 250, 227 S.E.2d 199 (1976); State v. Munsch, 287 S.C. 313, 338 S.E.2d 329 (1985). A defendant who pleads guilty on the advice of counsel may collaterall......
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Samuel v. Mouzon
...from a guilty plea in that "a plea of nolo cannot be used as an admission against a defendant in civil litigation." Kibler v. State, 267 S.C. 250, 227 S.E.2d 199 (1976). See also In re Anderson, 255 S.C. 56, 177 S.E.2d 130 (1970) (plea of nolo contendere is not an admission of guilt except ......
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Brown v. Theos
...purposes it is a plea of guilty in so far as the consequences in the particular case in which it is pled." Kibler v. State, 267 S.C. 250, 254, 227 S.E.2d 199, 201 (1976). South Carolina courts have recognized there are collateral benefits to a plea of no contest and such a plea cannot be us......
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State v. Paris
...of nolo contendere is a plea of guilty in the particular case. State v. Munsch, 287 S.C. 313, 338 S.E.2d 329 (1985); Kibler v. State, 267 S.C. 250, 227 S.E.2d 199 (1976); see 21 Am.Jur.2d Criminal Law § 728, at 703 (1998) (stating that a plea of nolo contendere is the functional or substant......