Matthews v. State

• Decision Date: 20 February 1989
• Docket Number: No. 23125,23125
• Citation: 387 S.E.2d 258,300 S.C. 238
• Court: South Carolina Supreme Court
• Parties: David Ray MATTHEWS, Petitioner-Respondent, v. STATE of South Carolina, Respondent-Petitioner. . Heard

Page 258

387 S.E.2d 258

300 S.C. 238

David Ray MATTHEWS, Petitioner-Respondent, v. STATE of South Carolina, Respondent-Petitioner.

No. 23125.

Supreme Court of South Carolina.

Heard Feb. 20, 1989.

Decided Jan. 2, 1990.

Asst. Appellate Defender Stephen P. Williams, of S.C. Office of Appellate Defense, Columbia, for petitioner-respondent.

Atty. Gen. T. Travis Medlock and Chief Deputy Atty. Gen. Donald J. Zelenka, Columbia, for respondent-petitioner.

FINNEY, Justice:

Appellant David Ray Matthews was convicted of possession of marijuana with intent to distribute and trafficking in marijuana--possession of at least ten (10) but less than one hundred (100) pounds. Matthews was sentenced to consecutive terms of imprisonment of five years suspended upon service of two years for possession with intent to distribute and ten years suspended upon service of six years for trafficking. On application for post conviction relief (PCR), the circuit court found that Matthews received ineffective assistance of appellate counsel and was, therefore, entitled to review of his direct appeal issues pursuant to Davis v. State, 288 S.C. 290, 342 S.E.2d 60 (1986). We granted certiorari, affirmed the decision of the PCR judge, and ordered briefing of the direct appeal issues. We affirm in part and reverse in part.

The question presented is whether cumulative punishment for possession of marijuana with intent to distribute and trafficking in marijuana, based upon possession of ten or more pounds ¹ under S.C.Code Ann. § 44-53-370 (1985), violates principles of double jeopardy.

Under S.C.Code Ann. § 44-53-370(a)(1) (1985), a person is guilty of possession with intent to distribute marijuana if he possesses the substance with an intent to distribute it. Possession of any amount of marijuana, coupled with sufficient indicia of intent to distribute, will support a conviction for possession with intent to distribute. State v. Adams, 291 S.C. 132, 352 S.E.2d 483 (1987). On the other hand, trafficking in marijuana, based solely on possession, is committed when a person knowingly possesses ten pounds or more of marijuana. S.C.Code Ann. § 44-53-370(e)(1) (1985).

For purposes of double jeopardy analysis, the United States Supreme Court established the following rule of statutory construction as a means of ascertaining legislative intent:

[T]he test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of a fact which the other does not.

Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932).

Subsequently, the Court indicated that the Blockburger rule is not controlling when legislative intent is clear from the face of the statute or the legislative history. Garrett v. United States, 471 U.S. 773, 105 S.Ct. 2407, 85 L.Ed.2d 764 (1985); Missouri v. Hunter, 459 U.S. 359, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983); Albernaz v. United States, 450 U.S. 333, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981); Whalen v. United States, 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980). With regard to cumulative punishment, "the [d]ouble [j]eopardy [c]lause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended." Missouri v. Hunter, 459 U.S. at 366, 103 S.Ct. at 678; Albernaz v. United States, 450 U.S. at 344, 101 S.Ct. at 1145.

We conclude that legislative intent is clear from the structure of section 44-53-370. Therefore, a Blockburger analysis is unnecessary, and the Blockburger precedent is not controlling. The offenses at issue are both set forth in section 44-53-370. It is our opinion that the legislature intended to establish penalties for possession of marijuana which are directly related to the amount of marijuana possessed by a defendant. Under S.C.Code Ann. § 44-53-370(d)(3) (1985), a person who possesses less than one (1) ounce of marijuana is guilty of a misdemeanor and subject to imprisonment for a term not to exceed thirty (30) days. The same subsection provides that if one possesses an ounce or more of marijuana he is prima facie guilty of possession with intent to distribute and subject to a term of imprisonment not to exceed five (5) years. Under subsection (e)(...