State v. Dobson, 22009

Decision Date29 November 1983
Docket NumberNo. 22009,22009
Citation279 S.C. 551,309 S.E.2d 752
CourtSouth Carolina Supreme Court
PartiesThe STATE, Respondent, v. Tommy DOBSON, Appellant.

Asst. Appellate Defender William Isaac Diggs, of S.C. Com'n of Appellate Defense, Columbia, for appellant.

Atty. Gen. T. Travis Medlock, Retired Atty. Gen. Daniel R. McLeod, Asst. Atty. Gen. Harold M. Coombs, Jr., and State Atty. Carlisle Roberts, Jr., Columbia and Sol. Donald V. Myers, Lexington, for respondent.

GREGORY, Justice:

Appellant Tommy Dobson was convicted of attempted burglary after the trial judge refused his plea of autrefois acquit. We vacate appellant's conviction and sentence.

Appellant was first indicted for attempted housebreaking. At trial, the judge directed a verdict of acquittal on the ground that the State's evidence established a breaking occurred at night, if at all.

Appellant was reindicted for attempted burglary for the same act. The trial judge refused appellant's plea of autrefois acquit. Appellant was convicted and sentenced to six years' imprisonment suspended upon service of nine months and three years' probation.

Appellant argues the second indictment and trial violated the double jeopardy clauses of the Fifth Amendment to the United States Constitution and Article I, Section 12 of the South Carolina Constitution. We agree.

This Court held in State v. Suttles, --- S.C. ---, 302 S.E.2d 338 (1983) 1 that housebreaking is a lesser included offense of burglary and that a defendant could plead guilty to housebreaking under a burglary indictment. Likewise, a defendant may be convicted of housebreaking under a burglary indictment. One cannot, however, be convicted of burglary under an indictment for housebreaking.

A lesser included offense requires no proof beyond that which is required for conviction of the greater offense. Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977). The Fifth Amendment to the United States Constitution forbids successive prosecution for a greater or lesser offense. Id.

"If two offenses are the same ... for purposes of barring consecutive sentences at a single trial, they necessarily will be the same for purposes of barring successive prosecutions." Id. at 166, 97 S.Ct. at 2226.

Since, by definition, burglary includes all the elements of housebreaking, appellant could not be convicted of both offenses at a single trial and could not be reindicted for either offense after acquittal on the other.

Because of our disposition of...

To continue reading

Request your trial
6 cases
  • State v. Easler
    • United States
    • South Carolina Court of Appeals
    • April 2, 1996
    ...which is required for conviction of the greater offense." State v. Cribb, 310 S.C. at 523, 426 S.E.2d at 309 (citing State v. Dobson, 279 S.C. 551, 309 S.E.2d 752 (1983)). "The greater offense must include all the elements of the lesser." Id. at 523, 426 S.E.2d at 309. Felony DUI causing de......
  • State v. Kirby
    • United States
    • South Carolina Court of Appeals
    • December 23, 1996
    ...of felony driving under the influence (DUI) because felony DUI does not require proof of recklessness). See also State v. Dobson, 279 S.C. 551, 309 S.E.2d 752 (1983) (a lesser included offense requires no proof beyond that which is required for conviction of the greater offense). Since the ......
  • State v. Cribb
    • United States
    • South Carolina Supreme Court
    • September 21, 1992
    ...included offense is one that requires no proof beyond that which is required for conviction of the greater offense. State v. Dobson, 279 S.C. 551, 309 S.E.2d 752 (1983). The greater offense must include all the elements of the lesser. See State v. Fennell, 263 S.C. 216, 209 S.E.2d 433 (1974......
  • State v. Thompson
    • United States
    • South Carolina Supreme Court
    • November 4, 1997
  • Request a trial to view additional results
3 books & journal articles
  • K. Burglary and Related Offenses
    • United States
    • The Criminal Law of South Carolina (SCBar) Chapter III Offenses Against Property
    • Invalid date
    ...jeopardy would preclude a conviction of attempted burglary of a person previously acquitted of attempted housebreaking. State v. Dobson, 279 S.C. 551, 309 S.E.2d 752 (1983). In Dobson, the trial court judge had directed a verdict of acquittal on the initial charge of attempted housebreaking......
  • C. Classification of Offenses
    • United States
    • The Criminal Law of South Carolina (SCBar) Chapter I General Principles of Criminal Law
    • Invalid date
    ...Double Jeopardy Prior acquittal of a lesser included offense precludes subsequent prosecution for the greater offense. State v. Dobson, 279 S.C. 551, 309 S.E.2d 752 (1983) (attempted housebreaking and attempted burglary). Dictum in Dobson suggests that one could not be reindicted for either......
  • D. Attempt
    • United States
    • The Criminal Law of South Carolina (SCBar) Chapter IV Anticipatory Offenses and Parties to Criminal Activity
    • Invalid date
    ...an attempt to commit the lesser included offense is itself a lesser included offense of an attempt to commit the greater. State v. Dobson, 279 S.C. 551, 309 S.E.2d 752 (1983) (attempted housebreaking and attempted burglary). There are numerous statutes which proscribe certain conduct as wel......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT