State v. Best
Decision Date | 04 January 1972 |
Docket Number | No. 19343,19343 |
Citation | 186 S.E.2d 272,257 S.C. 361 |
Parties | The STATE, Appellant, v. Jeryl BEST et al., Respondents. |
Court | South Carolina Supreme Court |
Atty. Gen. Daniel R. McLeod, and Asst. Attys. Gen. C. Tolbert Goolsby, Jr. and Everett N. Brandon, Columbia, for appellant.
Vinton D. Lide, Hartsville, and Ernest B. Hinnant, Florence, for respondents.
The record reveals that Jeryl Best, L. Delmer Kirven, and James Dewey Marsh, the respondents herein, along with others, were indicted at the 1971 February Term of the Court of General Sessions for Darlington County of offenses which arose out of an incident which occurred at the Lamar Schools in Lamar, South Carolina, on March 3, 1970. This indictment contained three counts charging (1) common law riot, (2) malicious destruction of personal property and, (3) assault and battery of a high and aggravated nature. Best was charged on counts one and two, Kirven was charged on all three counts and Marsh on count one of the indictment.
The three respondents were tried and convicted, on February 21, 1971, at the Court of General Sessions for Darlington County. Best and Marsh were convicted of the offense of riot and Kirven was convicted of the offenses of riot and assault and battery of a high and aggravated nature. The respondents were not sentenced immediately after the return of the verdicts. The trial judge decided to defer sentencing them until a later date and sentences were thereafter imposed on each of the respondents on March 8, 1971, in Dillon, South Carolina, during the March Term of the Court of General Sessions for said county.
Best was sentenced to the service of two years imprisonment and the payment of a fine in the amount of $1,000 provided that upon the service of six months of said sentence and the payment of the fine, that the balance of the sentence was suspended and he was to be placed on probation for a period of two years. Kirven, on the charge of riot, was sentenced to the service of twelve months and the payment of a fine provided upon the service of four months or the payment of the fine that the aforesaid sentence was suspended and he was to be placed on probation for three years. Kirven was sentenced, on the charge of assault and battery of a high and aggravated nature, to the service of a term of two years provided that upon the service of eight months the balance of the aforesaid sentence was to be suspended and he was to be placed on probation for a period of three years. This sentence was to be served consecutive to the sentence for riot, and with the probation sentence to be concurrent with that imposed for riot. Marsh was sentenced to the service of eighteen months and the payment of a fine of $1,000, provided upon the service of four months and the payment of a fine of $500 his sentence was to be suspended and he was placed on probation for a period of two years.
The record shows that on Monday, March 15, 1971, the trial judge returned to Darlington County for the purpose of presiding over the Court of Common Pleas, at which time and according to a statement prepared by the said trial judge, certain citizens wanted to know if he could and would discuss further the cases of Best and Marsh. Inquiry was made as to whether the trial judge would be willing to help them with their work if no appeal was filed and they determined to serve their sentences. The trial judge suggested that each present a letter with his request which would be considered. The trial judge agreed to keep the case as it related to Best and Marsh 'under review' and agreed to reduce their 'jail time further, depending on results.' He further stated that on or about April 15, 1971, he expressly promised the attorney for Kirven that he 'would retain jurisdiction' of the case as to him and 'would modify and reduce the sentence after several months if all went well.'
The record shows that on March 17, 1971, Best and Marsh, by letters, without any notice to The State, asked for permission to be released from confinement for specific periods to carry on their business occupations during the term of their imprisonment. On March 17 and 18, the trial judge amended, respectively, the sentences which he earlier had imposed on Best and Marsh. Best's sentence was amended by allowing him, during the period of his imprisonment, to be released from confinement at 12:00 noon each Friday and to remain free until the following Monday morning at 7:00 a.m. The sentence of Marsh was amended to allow him to satisfy the term of his imprisonment, to which he had originally been sentenced, by serving each day in jail for a five week period, during which he was to be released from confinement between the hours of 12:00 noon on Saturday and 10:00 p.m. Sunday and thereafter allowed to work at his job on a forty hour basis each week and during this time he shall make a three or four day week of confinement until the balance of his time is completed.
The record shows that on May 28, 1971, Judge Wade S. Weatherford, Jr., who was the presiding judge at the time of the trial and sentencing of the respondents, returned to Darlington County and, without notice to The State, directed the sheriff of said county to bring the three respondents before him and changed the sentences of Best and Marsh by immediately suspending the unserved portions of their terms of imprisonment and by reducing Best's probation to one year and Marsh's to six months. The sentences of Kirven were ordered to run concurrently instead of consecutively and they were to be suspended upon the service of six months imprisonment rather than twelve. The trial judge required each of the respondents to pay the fines previously imposed.
The State prosecutes this appeal from the orders of Judge Weatherford modifying the sentences imposed upon the respondents.
The practical question for decision here is whether the trial judge had jurisdiction to change or suspend the sentences imposed by him on the respondents on March 8, 1971.
Our Constitution of 1895, Art. 5, Sec. 13 thereof, provides that the State shall be divided into as many Judicial Circuits as the General Assembly may prescribe; and in Art. 4, Sec. 14, it is provided that the judges of the Circuit Courts shall interchange circuits with each other, and the General Assembly shall provide therefor.
The General Assembly in pursuance of Art. 5, Sec. 13, of the Constitution, divided the State into sixteen Judicial Circuits and provided that the fourth circuit should be composed of the counties of Chesterfield, Darlington, Marlboro and Dillon. Section 15--261, of the 1962 Code, as amended.
The General Assembly in compliance with Art. 5, Sec. 14, of the Constitution, enacted into law Section 15--129 of the Code which provides as follows:
'Between the first and fifteenth days of December in each year the Chief Justice or, in his absence or inability to attend, the senior associate justice shall form a roster of the circuit judges of the several circuits in order to arrange a regular and continuous assignment and interchange of circuits among such judges and make an order assigning the several circuit judges to hold the several circuit courts in all of the circuits of the State for the whole of the succeeding year in such order as will effect a continuous interchange of circuits according to such numerical series.'
In compliance with Section 15--129 of the Code, the Chief Justice of this Court, by an order dated December 1, 1970, assigned for the First Session of the respective Circuits, commencing on January 1, 1971, the Honorable Wade S. Weatherford, Jr., Judge of the Seventh Circuit, to hold the courts of the Fourth Circuit. It was also provided in said order that the Second Session of each Circuit, commencing on May 1, 1971, would be held by the judge of that Circuit. By the aforesaid order, Judge Wade S. Weatherford, Jr. was the presiding judge of the Fourth Circuit from January 1, 1971 until April 30, 1971, and from May 1, 1971 until August 31, 1971, he was the resident and presiding judge of the Seventh Circuit.
The General Assembly of this State, by Section 15--266 of the Code, provided for the holding of the terms of court in the Fourth Circuit. It was provided that a Court of General Sessions for Darlington County should be held on the third Monday in February, this being February 15, 1971. A Common Pleas Court for Dillon County was scheduled for the fourth Monday in February or February 22, 1971. It was also provided that a General Sessions Court would be held in Dillon County on the second Monday in March, which was March 8, 1971. A Court of Common Pleas was scheduled for the third Monday in March at Darlington, this being March 15, 1971.
The record shows that the trial judge deferred sentencing the respondents until March 8, 1971 in Dillon County. Neither The State nor the respondents have raised any question concerning the time and place of the pronouncement of the sentences in this case. Both the State and the respondents acquiesced in the court's action and neither can now complain. Shillito v. City of Spartanburg, 215 S.C. 83, 54 S.E.2d 521. However, we call attention to the statement of the trial judge that 'the court did not retain jurisdiction as such, or transfer jurisdiction to any other court term or extend the term of court then ending.' The trial judge stated that he postponed the sentencing of the respondents out of consideration for the welfare and safety of the jury that had convicted them.
The term of court at which the respondents were convicted terminated on February 21, 1971 and a new term of Court of Common Pleas commenced, pursuant to Section 15--266 of the Code, in Dillon County on February 22, 1971. The expiration of the term of Court of General Sessions at which the resondents were tried and convicted terminated by operation of law because of the commencement of another term of court in Dillon County in...
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