State v. Elliott
Decision Date | 03 May 1999 |
Docket Number | No. 2987.,2987. |
Citation | 517 S.E.2d 713,335 S.C. 512 |
Parties | The STATE, Respondent, v. Clyde ELLIOTT, Appellant. |
Court | South Carolina Court of Appeals |
Assistant Appellate Defender Melody J. Brown, of SC Office of Appellate Defense, of Columbia, for appellant.
Attorney General Charles M. Condon, Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General
Salley W. Elliott and Assistant Attorney General G. Robert DeLoach, III, all of Columbia; and Solicitor Randolph Murdaugh, of Hampton, for respondent.
Clyde Elliott appeals his conviction for assault and battery of a high and aggravated nature (ABHAN). We vacate.
On June 23, 1997, a Colleton County grand jury indicted Clyde Elliott on one count of assault with intent to commit criminal sexual conduct (CSC) in the first degree.1 At trial, the indictment was amended to assault with intent to commit CSC in the third degree. In addition to an appropriate instruction on assault with intent to commit CSC third, however, the trial court instructed the jury on ABHAN as a lesser included offense. Elliott did not object to the court's charge. The jury subsequently convicted Elliott of ABHAN, and the trial court sentenced him to seven years imprisonment, suspended on service of four and two years probation. Elliott now appeals.
Elliott argues the trial court lacked subject matter jurisdiction to convict and sentence him for ABHAN, because ABHAN is not a lesser included offense of assault with intent to commit CSC third. We agree.
In order for the trial court to have jurisdiction to convict Elliott for ABHAN when he was indicted for assault with intent to commit CSC third, ABHAN would have to be a lesser included offense of assault with intent to commit CSC third. Murdock v. State, 308 S.C. 143, 144, 417 S.E.2d 543, 544 (1992) ( ). ABHAN can be a lesser included offense of assault with intent to commit CSC third only if assault with intent to commit CSC third contains all the elements of ABHAN. Carter v. State, 329 S.C. 355, 362, 495 S.E.2d 773, 777 (1998) ().
One element of ABHAN is a battery. State v. Murphy, 322 S.C. 321, 325, 471 S.E.2d 739, 741 (Ct.App.1996) ( ). Battery, however, is not an element of assault with intent to commit CSC third. State v. Morris, 289 S.C. 294, 295 n. 1, 345 S.E.2d 477, 477 n. 1 (1986) () .2 Consequently, ABHAN cannot be a lesser included offense of assault with intent to commit CSC third, and the circuit court was without jurisdiction to...
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State v. Elliott
...not a lesser included offense of assault with intent to commit criminal sexual conduct (ACSC) in the third degree. State v. Elliott, 335 S.C. 512, 517 S.E.2d 713 (Ct.App.1999). We FACTS Respondent was indicted for ACSC, first degree. Prior to trial, the indictment was amended to ACSC, third......
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State v. Clarkson, 3069.
...ABHAN to constitute a lesser included offense of assault with intent to commit second degree CSC with a minor. See State v. Elliott, 335 S.C. 512, 517 S.E.2d 713, 714 (1999) (analyzing whether ABHAN constituted a lesser included offense of assault with intent to commit third degree Battery ......
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State v. Williams
...of the offense, a waiver of indictment, or unless the charge is a lesser included offense of the crime charged. State v. Elliott, 335 S.C. 512, 517 S.E.2d 713 (Ct.App.1999); Murdock v. State, 308 S.C. 143, 417 S.E.2d 543 (1992). Absent evidence to the contrary, proceedings in a court of gen......