State v. Sutton, No. 2895.

CourtCourt of Appeals of South Carolina
Writing for the CourtGOOLSBY.
Citation508 S.E.2d 41,333 S.C. 192
Docket NumberNo. 2895.
Decision Date26 October 1998
PartiesThe STATE, Respondent, v. Michael SUTTON, Appellant.

333 S.C. 192
508 S.E.2d 41

The STATE, Respondent,
v.
Michael SUTTON, Appellant

No. 2895.

Court of Appeals of South Carolina.

Heard October 6, 1998.

Decided October 26, 1998.

Rehearing Denied December 17, 1998.


333 S.C. 193
Assistant Appellate Defender M. Anne Pearce, of S.C. Office of Appellate Defense, of Columbia, for appellant

Attorney General Charles Molony Condon, Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott and Assistant Attorney General G. Robert DeLoach, III, of Office of the Attorney General, of Columbia; and Solicitor Dudley Saleeby, Jr., of Florence, for respondent.

GOOLSBY, Judge:

Michael Sutton appeals his convictions and sentences for assault and battery with intent to kill, attempted murder, and possession of a firearm during the commission of a violent crime. The dispositive question on appeal concerns whether, under the facts of this case, a prosecution will lie for both assault and battery with intent to kill and attempted murder. We affirm in part and vacate in part.

On December 22, 1994, Sutton shot Dennis Thomas three times in a Florence County nightclub. Thomas died over a year and a day later on January 22, 1996.

At trial, Sutton moved for a directed verdict. He argued assault and battery with intent to kill and attempted murder were the same offense and to convict him of both offenses in this case would be to convict him twice for the same criminal act. The trial court denied the motion. Following his conviction, the trial court sentenced Sutton to a twenty-year term for assault and battery with intent to kill, to a concurrent life

333 S.C. 194
term for attempted murder, and to a consecutive five-year term for the possession of a firearm offense

We agree with Sutton. Where, as here, there is evidence the defendant unlawfully shot and wounded another person with malice aforethought, either express or implied, and the person did not die within a year and a day after the wounds were inflicted so that there is a conclusive presumption the wounds did not cause the death, the offense is not attempted murder but is assault and battery with intent to kill. In South Carolina, the offense of assault and battery with intent to kill embraces the whole of attempted murder under such circumstances. See State v. Foust, 325 S.C. 12, 15, 479 S.E.2d 50, 51 (1996) (quoting State v. Jones, 133 S.C. 167, 179-180, 130 S.E. 747, 751 (1925), as defining assault and battery with intent...

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4 practice notes
  • State v. Hill, No. 25868.
    • United States
    • United States State Supreme Court of South Carolina
    • September 13, 2004
    ...S.E.2d 283 (2000). We agree. In State v. Sutton, the Court of Appeals held attempted murder is not a recognized offense in South Carolina. 333 S.C. 192, 194, 508 S.E.2d 41, 42 (Ct.App.1998). This decision was filed October 26, 1998, and we granted certiorari on July 8, 1999. Appellant's tri......
  • State v. Reddick, No. 3448.
    • United States
    • Court of Appeals of South Carolina
    • February 19, 2002
    ...Raffaldt, 318 S.C. 110, 456 S.E.2d 390 (1995). We must review the argument in the context of the entire record. Brown, 333 S.C. at 191, 508 S.E.2d at 41. The appellant has the burden of showing that any alleged error in argument deprived him of a fair trial. We find Reddick was correct in h......
  • State v. Sutton, No. 25130.
    • United States
    • United States State Supreme Court of South Carolina
    • May 15, 2000
    ...for respondent. MOORE, Justice: The Court of Appeals vacated respondent's attempted murder conviction and sentence. State v. Sutton, 333 S.C. 192, 508 S.E.2d 41 (Ct.App.1998). We granted the State a writ of certiorari to review the Court of Appeals' decision. We affirm as FACTS On December ......
  • State v. Brown, No. 2894.
    • United States
    • Court of Appeals of South Carolina
    • October 26, 1998
    ...of these individuals used coercion or threats or somehow brow beat Mr. Brown into giving a confession, then throw the case out, ladies and 333 S.C. 192 gentlemen. I'm not going to tell you to convict somebody if you think that's what law enforcement did in this case. If you think they used ......
4 cases
  • State v. Hill, No. 25868.
    • United States
    • United States State Supreme Court of South Carolina
    • September 13, 2004
    ...S.E.2d 283 (2000). We agree. In State v. Sutton, the Court of Appeals held attempted murder is not a recognized offense in South Carolina. 333 S.C. 192, 194, 508 S.E.2d 41, 42 (Ct.App.1998). This decision was filed October 26, 1998, and we granted certiorari on July 8, 1999. Appellant's tri......
  • State v. Reddick, No. 3448.
    • United States
    • Court of Appeals of South Carolina
    • February 19, 2002
    ...Raffaldt, 318 S.C. 110, 456 S.E.2d 390 (1995). We must review the argument in the context of the entire record. Brown, 333 S.C. at 191, 508 S.E.2d at 41. The appellant has the burden of showing that any alleged error in argument deprived him of a fair trial. We find Reddick was correct in h......
  • State v. Sutton, No. 25130.
    • United States
    • United States State Supreme Court of South Carolina
    • May 15, 2000
    ...for respondent. MOORE, Justice: The Court of Appeals vacated respondent's attempted murder conviction and sentence. State v. Sutton, 333 S.C. 192, 508 S.E.2d 41 (Ct.App.1998). We granted the State a writ of certiorari to review the Court of Appeals' decision. We affirm as FACTS On December ......
  • State v. Brown, No. 2894.
    • United States
    • Court of Appeals of South Carolina
    • October 26, 1998
    ...of these individuals used coercion or threats or somehow brow beat Mr. Brown into giving a confession, then throw the case out, ladies and 333 S.C. 192 gentlemen. I'm not going to tell you to convict somebody if you think that's what law enforcement did in this case. If you think they used ......

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