State v. Scipio, No. 22170

CourtUnited States State Supreme Court of South Carolina
Writing for the CourtNESS
Citation322 S.E.2d 15,283 S.C. 124
PartiesThe STATE, Respondent, v. Adam SCIPIO, Appellant. . Heard
Decision Date11 September 1984
Docket NumberNo. 22170

Page 15

322 S.E.2d 15
283 S.C. 124
The STATE, Respondent,
v.
Adam SCIPIO, Appellant.
No. 22170.
Supreme Court of South Carolina.
Heard Sept. 11, 1984.
Decided Oct. 12, 1984.

Page 16

[283 S.C. 125] Deputy Appellate Defender William Isaac Diggs, Columbia, for appellant.

Atty. Gen. T. Travis Medlock, Asst. Attys. Gen. Harold M. Coombs, Jr., and Charles H. Richardson, Columbia, Solicitor Dudley Saleeby, Jr., Twelfth Judicial Circuit, Florence, for respondent.

NESS, Justice:

Appellant was convicted of robbery and armed robbery and sentenced to seven years and twenty-one years concurrently.

We affirm the conviction and twenty-one year sentence for armed robbery but reverse the robbery conviction and vacate the seven year sentence.

On the night of the robbery, appellant entered a Sav-Way Station, pointed a pistol at the attendant and demanded money from the cash register and the attendant's wallet.

Appellant first argues his convictions for robbery and armed robbery constitute double jeopardy under Blockburger v. U.S., 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932) because robbery is a lesser included offense of armed robbery. We agree.

"A lesser included offense 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 [283 S.C. 126] 752, 753 (1983). In State v. Brown, 274 S.C. 48, 260 S.E.2d 719 (1979), we defined robbery as the felonious taking and carrying away of goods of another against the will or without consent. The legislature has defined armed robbery as robbery while armed with a deadly weapon. S.C.Code Ann. § 16-11-330 (1976). Since only the additional element of being armed with a deadly weapon distinguishes these two offenses, robbery is a lesser included offense of armed robbery. State v. Jones, 273 S.C. 723, 259 S.E.2d 120 (1979). The constitutional prohibition against double jeopardy forbids punishment for an offense and a lesser included offense by the same acts. State v. Spann, 279 S.C. 399, 308 S.E.2d 518 (1983).

The trial judge erred in permitting the jury to find guilt on both robbery and armed robbery. He should have instructed the jury to find guilt on one or the other. The conviction and sentence of the lesser included offense is vacated. State v. Lawson, 279 S.C. 266, 305 S.E.2d 249 (1983).

Appellant next alleges the trial court erred in denying his motion for a mistrial based on the State's failure to timely produce a composite drawing as...

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20 practice notes
  • State v. Brouwer, No. 3373.
    • United States
    • Court of Appeals of South Carolina
    • 23 Julio 2001
    ...the source from which it may come. United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972); Hayden, 283 S.C. at 123, 322 S.E.2d at 15; State v. Franklin, 267 S.C. 240, 226 S.E.2d 896 (1976). In determining a proper sentence, a defendant's history, character, and rehabilit......
  • Joseph v. State, No. 25539.
    • United States
    • United States State Supreme Court of South Carolina
    • 14 Octubre 2002
    ...felonious taking and carrying away of the goods of another against the will or without consent of the other with force. State v. Scipio, 283 S.C. 124, 322 S.E.2d 15 (1984). Armed robbery occurs when a person commits robbery while armed with a deadly weapon. Id. Robbery is a lesser included ......
  • State v. Moore, No. 4247.
    • United States
    • Court of Appeals of South Carolina
    • 18 Mayo 2007
    ...using a representation of a deadly weapon."). Included in armed robbery is the lesser included offense of robbery. State v. Scipio, 283 S.C. 124, 125-126, 322 S.E.2d 15, 16 (1984). Our statutory scheme specifies that the definition of robbery is to be provided by South Carolina's commo......
  • McGee v. Warden of Lieber Corr. Inst., C. A. 5:21-2777-RMG-KDW
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • 15 Julio 2022
    ...procedure depends upon the consideration of a totality of the facts and circumstances of each particular case); State v. Scipio, 283 S.C. 124, 322 S.E.2d 15 (1984)(same): State v. Thompson, 216 S.C. 616, 281 S.E.2d 216 (1981)(similar); State v. Johnson, 318 S.C. 372, 458 S.E.2d 49 (Ct App. ......
  • Request a trial to view additional results
20 cases
  • State v. Brouwer, No. 3373.
    • United States
    • Court of Appeals of South Carolina
    • 23 Julio 2001
    ...the source from which it may come. United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972); Hayden, 283 S.C. at 123, 322 S.E.2d at 15; State v. Franklin, 267 S.C. 240, 226 S.E.2d 896 (1976). In determining a proper sentence, a defendant's history, character, and rehabilit......
  • Joseph v. State, No. 25539.
    • United States
    • United States State Supreme Court of South Carolina
    • 14 Octubre 2002
    ...felonious taking and carrying away of the goods of another against the will or without consent of the other with force. State v. Scipio, 283 S.C. 124, 322 S.E.2d 15 (1984). Armed robbery occurs when a person commits robbery while armed with a deadly weapon. Id. Robbery is a lesser included ......
  • State v. Moore, No. 4247.
    • United States
    • Court of Appeals of South Carolina
    • 18 Mayo 2007
    ...was using a representation of a deadly weapon."). Included in armed robbery is the lesser included offense of robbery. State v. Scipio, 283 S.C. 124, 125-126, 322 S.E.2d 15, 16 (1984). Our statutory scheme specifies that the definition of robbery is to be provided by South Carolina's common......
  • McGee v. Warden of Lieber Corr. Inst., C. A. 5:21-2777-RMG-KDW
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • 15 Julio 2022
    ...procedure depends upon the consideration of a totality of the facts and circumstances of each particular case); State v. Scipio, 283 S.C. 124, 322 S.E.2d 15 (1984)(same): State v. Thompson, 216 S.C. 616, 281 S.E.2d 216 (1981)(similar); State v. Johnson, 318 S.C. 372, 458 S.E.2d 49 (Ct App. ......
  • Request a trial to view additional results

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