Scott v. State, No. 24901.

• Court: United States State Supreme Court of South Carolina
• Writing for the Court: WALLER, Justice
• Citation: 334 S.C. 248,513 S.E.2d 100
• Parties: Clifton David SCOTT, Respondent, v. STATE of South Carolina, Petitioner.
• Decision Date: 16 February 1999
• Docket Number: No. 24901.

334 S.C. 248
513 S.E.2d 100

Clifton David SCOTT, Respondent,
v.
STATE of South Carolina, Petitioner

No. 24901.

Supreme Court of South Carolina.

Submitted December 16, 1998.

Decided February 16, 1999.

334 S.C. 250

Attorney General Charles M. Condon, Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Teresa A. Knox, all of Columbia, for petitioner

Howard W. Paschal, Jr., of Greenville, for respondent.

ON WRIT OF CERTIORARI

WALLER, Justice:

Petitioner (the State) petitions the Court to reverse the order of the post-conviction relief (PCR) judge granting relief to respondent. We affirm.

FACTS

A jury in 1989 convicted respondent of trafficking in and transportation of 23.17 grams of cocaine. A circuit judge

334 S.C. 251

sentenced respondent to thirty years in prison and a $50,000 fine on the trafficking conviction, and one year, concurrent, on the transportation conviction. The judge, without objection from respondent's trial attorney, sentenced respondent as a second offender because he had a 1987 misdemeanor conviction for simple possession of marijuana. The convictions and sentences were affirmed. State v. Scott, 303 S.C. 360, 400 S.E.2d 784 (Ct.App.1991)

Respondent filed a PCR application dated January 2, 1995. At a PCR hearing in February 1997, respondent testified he was arrested on Christmas Day in 1987 and charged with the possession of a single joint of marijuana. He was released almost immediately on a personal recognizance bond. The only court record either respondent or the State could find on the 1987 case was a copy of respondent's criminal record showing that he "forf $218" on the marijuana charge.

The PCR judge concluded the disposition of the 1987 marijuana charge was a bond forfeiture—not a conviction—because S.C.Code Ann. § 44-53-470 (1985)¹ does not define "conviction" to include a bond forfeiture. The judge reasoned that by defining a bond forfeiture as the equivalent of a conviction in other second offense statutes, such as statutes prohibiting driving under the influence of alcohol (DUI), the Legislature must have intentionally omitted bond forfeitures from the definition of second offense in Section 44-53-470. Consequently, the judge vacated respondent's sentence and ordered that he be resentenced as a first offender on the 1989 cocaine trafficking charge.

ISSUE

Did the PCR judge err in holding that respondent was improperly sentenced for a second offense because his prior 1987 marijuana case did not result in a conviction?

334 S.C. 252

DISCUSSION

The State contends the PCR judge erred in granting respondent's application because respondent was convicted of simple possession of marijuana in 1987. It was a conviction— not a bond forfeiture—and the penalty for that conviction was the forfeiture of his bond. Therefore, the State argues, respondent properly was sentenced as a second offender in the 1989 cocaine trafficking case. The State also contends respondent has failed to meet his burden of proof. We disagree.

"To establish a claim of ineffective assistance of trial counsel, a PCR applicant has the burden of proving counsel's representation fell below an objective standard of reasonableness and, but for counsel's errors, there is a reasonable probability that the result at trial would have been different.... A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial." Johnson v. State, 325 S.C. 182, 186, 480 S.E.2d 733, 735 (1997) (citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). Thus, a PCR applicant must show both error and prejudice to win relief in a PCR proceeding.

The burden is on the applicant in a post-conviction proceeding to prove the allegations in his application. Butler v. State, 286 S.C. 441, 334 S.E.2d 813 (1985). An appellate court must affirm the PCR court's decision when its findings are supported by any evidence of probative value. Cherry v. State, 300 S.C. 115, 386 S.E.2d 624 (1989). However, an appellate court will not affirm the decision when it is not supported by any probative evidence. Holland v. State, 322 S.C. 111, 470 S.E.2d 378 (1996).

A. ERROR

We agree with the PCR judge that respondent's 1987 marijuana case was a bond forfeiture, not a conviction. The only available court record shows that respondent "forf $218" on the charge. A further indication that respondent forfeited a bond is that $218 is the maximum bond forfeiture a magistrate may confirm as a judgment. S.C.Code Ann. § 17-15-170 (Supp.1997). The question, then, is whether the trial

334 S.C. 253

judge was required to treat that bond forfeiture as a conviction

"In the interpretation of statutes, our sole function is to determine and, within constitutional limits, give effect to the intention of the legislature, with reference to the meaning of the language used and the subject matter and purpose of the statute." State v. Ramsey, 311 S.C. 555, 561, 430 S.E.2d 511, 515 (1993). "A basic presumption exists that the legislature has knowledge of previous legislation when later statutes are passed on a related subject." Berkebile v. Outen, 311 S.C. 50, 53, 426 S.E.2d 760, 762 (1993); accord Bell v. South Carolina State Highway Dep't, 204 S.C. 462, 30 S.E.2d 65 (1944), overruled on other grounds in McCall by Andrews v....