State v. Lawrence, 20198

• Decision Date: 31 March 1976
• Docket Number: No. 20198,20198
• Citation: 266 S.C. 423,223 S.E.2d 856
• Court: South Carolina Supreme Court
• Parties: The STATE, Respondent, v. James Edward LAWRENCE, Appellant.

Page 856

223 S.E.2d 856

266 S.C. 423

The STATE, Respondent, v. James Edward LAWRENCE, Appellant.

No. 20198.

Supreme Court of South Carolina.

March 31, 1976.

Jeffrey A. Merriam, Greenville, for appellant.

Atty. Gen. Daniel R. McLeod and Asst. Attys. Gen. Emmet H. Clair and Harry W. Davis, Jr., Columbia, for respondent.

PER CURIAM:

James Edward Lawrence, the petitioner herein, was convicted on September 25, 1972 of armed robbery, assault and battery of a high and aggravated nature and carrying a weapon. He was sentenced for these offenses to twenty-four (24) years, nine years and one year respectively. Notice of intent to appeal was not given within ten days of the rising of the court as required by Section 7--405 of the South Carolina Code of Laws, 1962 which was necessary to give this Court jurisdiction of an appeal from the convictions and sentences. State v. Wright, 228 S.C. 432, 90 S.E.2d 492 (1955).

Petitioner filed an Application for Post-Conviction Relief, in the Greenville County Court, which was finally dismissed on September 17, 1973. Petitioner erroneously filed with this Court on September 14, 1973 a pleading captioned 'Appeal to Return and Motion to Dismiss' which was dismissed by then Chief Justice Moss. Subsequent to the denial of post conviction relief, petitioner attempted a direct belated appeal to the sentencing court which was denied for lack of jurisdiction. A similar motion was sent to this Court and the clerk informed petitioner it could not be filed since he had failed to give notice of intention to appeal within ten days of judgment. See White v. State, 263 S.C. 110, 113, 208 S.E.2d 35 (1974).

Petitioner then sought relief in the Federal District Court for the District of South Carolina. In reviewing petitioner's writ of habeas corpus Judge Martin found that the record did not reveal with certainty that petitioner was apprised of his right to appeal and, thus, an issue was raised as to his waiving his right to direct appeal meaningfully and voluntarily. See Nelson v. Peyton, 4 Cir., 415 F.2d 1154, 1157 (1969). Shiflett v. Commonwealth, 4 Cir., 447 F.2d 50, 54 (1971). He directed the State to appoint counsel for petitioner in order to seek belated review of his conviction. The case is now before the Court on motion of appointed counsel for permission to docket a belated appeal.

Appointed counsel has filed brief in compliance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), in which he concludes that two of the three exceptions are wholly frivolous and that although the third has merit in his opinion, it was not raised before the lower court and thus cannot be properly raised the first time on appeal.

Exception One alleges that the trial judge charged the jury as to the facts. The Court, having reviewed the entire jury charge, finds that the trial judge did not charge the facts but rather he was careful to instruct the jury that they were the sole judges of the facts.

Exception Two alleges that it was error for the trial judge to charge the law of murder and manslaughter when those offenses were not part of the indictment. We find no error. The trial judge defined the crimes of murder and manslaughter in merely an effort to aid the jury in understanding the distinction between assault and battery with intent to kill and assault and battery of a high and aggravated nature, both of which were possible verdicts under the indictment. The trial judge made it clear to the jury that murder and manslaughter were not possible verdicts. Specific approval of this charge is found in State v. Jones, 133 S.C. 167, 180 (1925), 130 S.E. 747.

Exception Three alleges the court 'erred in imposing a sentence of one year for the charge of carrying a weapon, the error being that in the circumstances of the present case this sentence is violative of the double jeopardy portion of the Fifth Amendment to the United States Constitution.' Although it is not clear what issue this exception raises and is subject to dismissal...