Sellers v. Boone, No. 19726

CourtUnited States State Supreme Court of South Carolina
Writing for the CourtBUSSEY; MOSS
Citation261 S.C. 462,200 S.E.2d 686
PartiesCleveland Louis SELLERS, Appellant, v. Sheriff of Orangeburg County, South Carolina, Vance L. BOONE, Respondent.
Docket NumberNo. 19726
Decision Date26 November 1973

Page 686

200 S.E.2d 686
261 S.C. 462
Cleveland Louis SELLERS, Appellant,
v.
Sheriff of Orangeburg County, South Carolina, Vance L.
BOONE, Respondent.
No. 19726.
Supreme Court of South Carolina.
Nov. 26, 1973.

Page 687

John E. Bishop, Greenville, Jack Greenberg and Charles Stephen Ralston, New York City, for appellant.

[261 S.C. 463] Atty. Gen Daniel R. McLeod and Asst. Attys. Gen Emmet H. Clair and Robert M. Ariail, Columbia, for respondent.

BUSSEY, Justice:

The instant appeal is from an order of the judge of the First Judicial Circuit denying appellant's application for post-conviction relief. Appellant was arrested on February 9, 1968, following his alleged participation in certain recial disturbances in Orangeburg, South Carolina, and was later indicted on three counts, the first of which charged him with conspiracy to commit the crime of riot, the second of which charged inciting persons to commit a riot, and the third of which charged him with the offense of riot. Upon his trial at the September 1970 term of court, upon appellant's motion, the judge directed a verdict of not guilty as to counts one and two of the indictment, to-wit: conspiracy to riot and incitement to riot, but submitted count three charging the offense of riot to the jury, which returned a verdict of guilty. His conviction was affirmed by this Court. State v. Sellers, 257 S.C. 35, 183 S.E.2d 889. [261 S.C. 464] A petition for writ of certiorari was denied by the Supreme Court of the United States on January 22, 1973. The appellant has now served his sentence of one year, less good conduct time, but was still incarcerated when this proceeding was commenced on June 26, 1973.

Upon his prior appeal, appellant contended that the evidence was insufficient to convict him of the crime of riot because there was no evidence of any act of violence committed personally by him in the course of the riot. In affirming his conviction, this Court pointed out that one who is present aiding and abetting in the commission of a misdemeanor is a principal and that there was ample evidence to sustain the inference that the 'conduct of appellant encouraged, incited and promoted the riot' and that such was sufficient to support his conviction.

The sole contention of appellant in the present proceeding is that this Court's affirmance of his conviction on the basis aforesaid, violated the double jeopardy clauses of both State and Federal Constitutions, since he had been the recipient of a directed verdict of not guilty in the lower court as to the count charging 'incitement to riot'. His contention is indeed a novel one and we think it without any merit for a variety of reasons. To begin with, the issue has not been timely raised. While conceivably a situation might arise wherein a question of double jeopardy would arise out of the affirmance by an appellate court of conviction, Under the circumstances of this case, we deem it certain that if there were any double jeopardy as contended by him, such occurred when the trial judge submitted the third court to the jury after having directed a verdict of not guilty as to the second count. The evidence supporting submission of the third count by the trial judge was the same evidence relied upon by this Court as sufficient to sustain the conviction. No point of double jeopardy was then made, nor raised in the course of his first appeal. Again, after our affirmance of his conviction, he had, of course, [261 S.C. 465] opportunity to petition for a rehearing, if it was deemed, as now contended, that double jeopardy arose only upon our affirmance, but this he...

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6 practice notes
  • Ward v. State, No. 105
    • United States
    • Court of Appeals of Maryland
    • April 7, 1981
    ...172 (1806); People v. Tenerowicz, 266 Mich. 276, 253 N.W. 296, 304 (1934); State v. McNeill, 3 Hawks 183 (N.C.1824); Sellers v. Boone, 261 S.C. 462, 200 S.E.2d 686 (1973). Page 85 In sum, absent constitutional or statutory provisions governing the effect of a nolle prosequi such as exist in......
  • McCrary v. State, No. 36400
    • United States
    • Missouri Court of Appeals
    • September 23, 1975
    ...Tyson v. State, 298 Minn. 559, 214 N.W.2d 461 (1974); State v. Kuecey, 60 Wis.2d 677, 211 N.W.2d 453, 455 (1973); Sellers v. Boone, 261 S.C. 462, 200 S.E.2d 686 (1973); State v. Hughes, 128 N.J.Super. 363, 320 A.2d 182, 184 (1974); Duguay v. State, 309 A.2d 234 (Me.1973); Morrison v. State,......
  • Drayton v. Evatt, No. 23852
    • United States
    • United States State Supreme Court of South Carolina
    • June 9, 1993
    ...v. State, 274 S.C. [312 S.C. 9] 26, 260 S.E.2d 187 (1979); Ashley v. State, 260 S.C. 436, 196 S.E.2d 501 (1973); Sellers v. Boone, 261 S.C. 462, 200 S.E.2d 686 (1973). Issues that could have been raised at trial or on direct appeal cannot be asserted in an application for post-conviction re......
  • Green v. Catoe, No. 99-30
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • May 4, 2000
    ...of his direct appeal; thus, this claim could not have been raised prior to Green's petition for rehearing thereon. In Sellers v. Boone, 200 S.E.2d 686, 687 (S.C. 1973), the Supreme Court of South Carolina stated that if an error arose out Page 224 [an] affirmance by an appellate court," an ......
  • Request a trial to view additional results
6 cases
  • Ward v. State, No. 105
    • United States
    • Court of Appeals of Maryland
    • April 7, 1981
    ...172 (1806); People v. Tenerowicz, 266 Mich. 276, 253 N.W. 296, 304 (1934); State v. McNeill, 3 Hawks 183 (N.C.1824); Sellers v. Boone, 261 S.C. 462, 200 S.E.2d 686 (1973). Page 85 In sum, absent constitutional or statutory provisions governing the effect of a nolle prosequi such as exist in......
  • McCrary v. State, No. 36400
    • United States
    • Missouri Court of Appeals
    • September 23, 1975
    ...Tyson v. State, 298 Minn. 559, 214 N.W.2d 461 (1974); State v. Kuecey, 60 Wis.2d 677, 211 N.W.2d 453, 455 (1973); Sellers v. Boone, 261 S.C. 462, 200 S.E.2d 686 (1973); State v. Hughes, 128 N.J.Super. 363, 320 A.2d 182, 184 (1974); Duguay v. State, 309 A.2d 234 (Me.1973); Morrison v. State,......
  • Drayton v. Evatt, No. 23852
    • United States
    • United States State Supreme Court of South Carolina
    • June 9, 1993
    ...v. State, 274 S.C. [312 S.C. 9] 26, 260 S.E.2d 187 (1979); Ashley v. State, 260 S.C. 436, 196 S.E.2d 501 (1973); Sellers v. Boone, 261 S.C. 462, 200 S.E.2d 686 (1973). Issues that could have been raised at trial or on direct appeal cannot be asserted in an application for post-conviction re......
  • Green v. Catoe, No. 99-30
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • May 4, 2000
    ...of his direct appeal; thus, this claim could not have been raised prior to Green's petition for rehearing thereon. In Sellers v. Boone, 200 S.E.2d 686, 687 (S.C. 1973), the Supreme Court of South Carolina stated that if an error arose out Page 224 [an] affirmance by an appellate court," an ......
  • Request a trial to view additional results

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