Scott v. StateScott v. State
- Reporters:
- , ,
- Before:
- Waller
ON WRIT OF CERTIORARI
WALLER, Justice:Pеtitioner (the State) petitions the Court to reverse the order of the post-conviction relief (PCR) judge granting relief to respondent. We affirm.
FACTS
A jury in 1989 convicted respondent of trafficking in and transportation of 23.17 grams of cocaine. A circuit judge
Respondent filed a PCR application dated January 2, 1995. At a PCR hearing in February 1997, respondent testified he was arrested on Christmas Day in 1987 and charged with the possession of a single joint of marijuana. He was released almost immediately on a personal recognizance bond. The only court record either respondent or the State could find on the 1987 case was a copy of respondent’s criminal record showing that he “forf $218” on the marijuana charge.
The PCR judge concluded the disposition of the 1987 marijuana charge was a bond forfeiture — not a conviction — because
ISSUE
Did the PCR judge err in hоlding that respondent was improperly sentenced for a second offense because his prior 1987 marijuana case did not result in a conviction?
The State contends the PCR judge erred in granting respondent’s application because respondent was convicted of simple possession of marijuana in 1987. It was a conviction— not a bond forfeiture — and the penalty for that conviсtion was the forfeiture of his bond. Therefore, the State argues, respondent properly was sentenced as a second offender in the 1989 cocaine trafficking case. The State alsо contends respondent has failed to meet his burden of proof. We disagree.
“To establish a claim of ineffective assistance of trial counsel, a PCR applicant has the burden of prоving counsel’s representation fell below an objective standard of reasonableness and, but for counsel’s errors, there is a reasonable probability that the result at trial would have beеn different____ A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial.” Johnson v. State, 325 S.C. 182, 186, 480 S.E.2d 733, 735 (1997) (citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). Thus, a PCR applicant must show both error and prejudice to win relief in a PCR proсeeding.
The burden is on the applicant in a post-conviction proceeding to prove the allegations in his application. Butler v. State, 286 S.C. 441, 334 S.E.2d 813 (1985). An appellate court must affirm the PCR court’s decision when its findings are supported by any evidence of .probative value. Cherry v. State, 300 S.C. 115, 386 S.E.2d 624 (1989). However, an appellate court will not affirm the decision when it is not supported by any probative evidence. Holland v. State, 322 S.C. 111, 470 S.E.2d 378 (1996).
A. ERROR
We agree with the PCR judge that respondent’s 1987 marijuana case was a bond forfeiture, not a conviction. The only available court record shows that respondent “forf $218” on the charge. A further indication thаt respondent forfeited a bond is that $218 is the maximum bond forfeiture a magistrate may confirm as a judgment.
“In the interpretation of statutes, оur sole function is to determine and, within constitutional limits, give effect to the intention of the legislature, with reference to the meaning of the language used and the subject matter and purpose of the statute.” State v. Ramsey, 311 S.C. 555, 561, 430 S.E.2d 511, 515 (1993). “A basic presumption exists that the legislature has knowledge of previous legislation when later statutes are passed on a related subject.” Berkebile v. Outen, 311 S.C. 50, 53, 426 S.E.2d 760, 762 (1993); accord Bell v. South Carolina State Highway Dep‘t, 204 S.C. 462, 30 S.E.2d 65 (1944), overruled on other grounds in McCall by Andrews v. Batson, 285 S.C. 243, 329 S.E.2d 741 (1985). Furthermore, penal statutes must be construеd strictly against the State in favor of the defendant. Williams v. State, 306 S.C. 89, 410 S.E.2d 563 (1991).
The Court of Appeals, in deciding that a bond forfeiture in a traffic case may not be used as an admission or for impeachment purposes in a subsequent civil case, distinguished a conviction or guilty plea from a bond forfeiture.
A forfeiture by its very nature differs from a guilty plea because it involves the failure of a person to act rather thаn an affirmative act admitting wrongdoing. It may also result from any of a variety of reasons, other than the intention to either make an admission or imply one by “silence,” e.g., the cost of defense as well as the indirect economic loss and inconvenience of a court appearance as compared with the consequence of a forfeiture.
Samuel v. Mouzon, 282 S.C. 616, 620, 320 S.E.2d 482, 485 (Ct.App.1984).
Similarly, a Louisiana court stated in a defamation case that “[a] conviction is a judicial determination of guilt. A forfeiture of bond is a decision by the person charged not to appear for trial, thereby avoiding a judicial determination of guilt or innocence.”
Hopkins v. Keith,
348 So.2d 999, 1002 (La.Ct.App.1977) (affirming summary judgment for defendant newspaper sued because story failed to fully distinguish between bond forfeiture and conviction, a distinction that is unсlear to much of the public).
See also
8A Am.Jur.2d
Bail and Recognizance
§ 113 (1997) (bond forfeiture proceeding “does not involve the guilt or innocence, conviction or acquittal, of any
This Court has held that a bond forfeiture is equivalent to a conviсtion when the Legislature has defined it as a conviction by statute. See State v. Smith, 276 S.C. 494, 280 S.E.2d 200 (1981) (noting that statute makes a bond forfeiture in a DUI case equivalent to a conviction); Southern Farm Bureau Casualty Ins. Co. v. Ausborn, 249 S.C. 627, 636, 155 S.E.2d 902, 907 (1967) (concluding an insured made false statements on application by not revealing bond forfeitures, which were defined as convictions under two statutes); State v. Langford, 223 S.C. 20, 25, 73 S.E.2d 854, 856 (1953) (explaining how Legislature closed a loophole in 1947 by defining a conviction under DUI statutes tо include bond forfeitures). 2
We have found no case in South Carolina or elsewhere, and the parties have cited none, in which a court explicitly declared that a bond forfeiture is equivalеnt to a conviction, absent a statute declaring it to be a conviction. The Legislature presumably was aware it had defined a conviction to include bond forfeitures in other statutes. 3 See Berkebile v. Outen, supra.
B. PREJUDICE
The trial judge, treating the 1987 marijuana case as respondent’s first conviction, sentenced respondent as a second offender to thirty years in prison and a $50,000 fine on the 1989 cocaine trafficking conviction. The maximum sentenсe a defendant faces for a first offense under Section 44-53-370(e) is ten years and a $25,000 fine.
4
We conclude the record contains probative evidence supporting the PCR judge’s con
CONCLUSION
We affirm the PCR judge’s decision and remand the case for respondent to be resentenced as a first offender.
AFFIRMED.
FINNEY, C.J., TOAL, MOORE and BURNETT, JJ., .concur.
Notes
. Section 44-53-470 states:
An offense is considered а second or subsequent offense, if, prior to his conviction of the offense, the offender has at any time been convicted under this article or under any State or Federal statute relating to nаrcotic drugs, marihuana, depressant, stimulant, or hallucinogenic drugs.
. Other states have reached the same conclusion. E.g., Fetters v. Degnan, 250 N.W.2d 25 (Iowa 1977) (bond forfeiture is equivalent to a conviction in DUI case because lawmakers defined it as a conviction under DUI statutes); Bennett v. Mississippi, 528 So.2d 815 (Miss.1988) (same); Pryor v. David, 436 S.W.2d 3 (Mo.1969) (same); City of Minot v. Mattern, 449 N.W.2d 560 (N.D.1989) (same); Virginia v. Brumfield, 224 Va. 250, 295 S.E.2d 878 (1982) (same); In re Sparks, 25 N.C.App. 65, 212 S.E.2d 220 (1975) (same); Illinois v. Harvey, 5 Ill.App.3d 499, 285 N.E.2d 179 (1972) (same); see also Olim v. Mayberry, 524 P.2d 24 (Oklа.1974) (upholding constitutionality of statute making bond forfeiture a conviction in traffic offenses); Pigue v. Florida, 567 So.2d 530 (Fla.Dist.Ct.App.1990) (concluding it was error to assess sentencing points for a bond forfeiture where sentencing rules did not define conviction to include a bond forfeiture).
. Criminal statutes in which the Legislature appears to recognize the distinction between a bond forfeiture and a conviction include:
Licensing statutes in which the Legislature, has defined a bond forfeiture as the equivalent of а conviction include:
. The Legislature increased the penalties in July 1988 for certain drug trafficking convictions, including those applicable in this case. Act No. 565, 1988 Acts 4903. The same penalties remain in effect today.