State v. Tolen

THIS OPINION
HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN
ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

The State, Respondent,

v.

Frank Tolen,
Jr., Appellant.

Appeal From Saluda County

 William P. Keesley, Circuit Court Judge

Unpublished Opinion No. 2009-UP-220

Submitted April 1, 2009 – Filed May 26,
2009  

AFFIRMED

Appellate Defender Kathrine H. Hudgins, of Columbia, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney
General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott,
and Assistant Attorney General Julie M. Thames, all of Columbia; and Solicitor
Donald V. Myers, of Lexington, for Respondent.

PER CURIAM:  Frank
Tolen, Jr. appeals his conviction and sentence of life without parole for armed
robbery and possession of a pistol by a person convicted of a violent crime. 
Tolen argues the trial court lacked subject matter jurisdiction to hear his
second trial and his conviction and sentence violate the constitutional
prohibition against double jeopardy.  We affirm[1] pursuant to Rule 220(b), SCACR, and the following authorities:  State v. Santiago, 370 S.C. 153, 163, 634
S.E.2d 23, 28 (Ct. App. 2006)  (“As a general rule, if an issue was not
raised and ruled upon below, it will not be considered for the first time on
appeal.”); State v. Nelson, 336 S.C. 186, 195, 519 S.E.2d 786,
790-91 (1999) (finding “where a verdict is set aside by a defendant’s own
motion and a new trial granted, the defendant may
be again tried for the offense”).

AFFIRMED.

Hearn,
C.J., Pieper and
Lockemy, JJ., concur.

[1] We decide this case without oral argument pursuant to
Rule 215, SCACR.