State v. Swaringen

273 S.E.2d 339 | S.C. | 1980

Per Curiam:

Appellant plead guilty to an indictment charging him with assault and battery with intent to kill and was sentenced to ten (10) years’ imprisonment. He additionally plead guilty to attempting to obtain possession of a controlled substance by fraud, forgery, deception or subterfuge and was sentenced to three (3) years’ imprisonment. The sentences were to run concurrently.

Appellant alleges that the three (3) year sentence exceeds that authorized by operation of S. C. Code §§ 44-53-390(a) (3) (b) and 44-53-420. We agree.

S. C. Code § 44-53-390(a) (3) make it unlawful for a person to knowingly or intentionally acquire or obtain possession of a controlled substance by misrepresentation, fraud, forgery, deception or subterfuge and by operation of subsection (b) imposes a maximum penalty or imprisonment for not more than five (5) years, a fine of not more than $10,000, or both. Where the conviction is for attempt, the maximum penalty which can be imposed is one-half the punishment prescribed for the offense. S. C. Code § 44-53-420.

As appellant’s sentence exceeded that authorized by S. C. Code § 44-53-420, that sentence is vacated, and the case is remanded for resentencing consistent with the above provisions. In all other respects, the convictions are affirmed.