State v. Mathis

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

The State ,       
Respondent,

v.

Willie James Mathis,       
Appellant.

Appeal From Greenwood County

 Wyatt T. Saunders, Jr., Circuit Court
Judge

Opinion No. 2003-UP-145

Submitted January 10, 2003 - Filed February
19, 2003

AFFIRMED

Chief Attorney Daniel T. Stacey, of Columbia; for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy
Attorney General John W. McIntosh, Assistant Deputy Attorney General Charles
H. Richardson, of Columbia; William Townes Jones, of Greenwood; for Respondent.

PER CURIAM:  Willie James Mathis argues
that the trial court did not have jurisdiction to sentence him as a third time
offender for shoplifting because the indictments did not allege third offense
or above.  We affirm.

FACTS/PROCEDURAL HISTORY

On June 13, 2001, a manager at Family
Dollar in Greenwood, South Carolina, observed Willie James Mathis put a pair
of hair clippers in his jacket and walk out of the store.  The manager called
the police and the police found Mathis nearby.  Mathis was in possession of
the hair clippers and several packs of lighters.

On August 19, 2001, customers at the Winn
Dixie in Greenwood observed Mathis putting meat products and hams in his clothing. 
The witnesses gave police a description of Mathis.  The police again found Mathis
nearby.  Mathis still had the hams and meat products in his pants.  Mathis admitted
that he had taken the products from the Winn Dixie.

Mathis was indicted on two counts of shoplifting. 
He pled guilty to both counts on November 13, 2001.  At the hearing, the solicitor
informed the judge that Mathis had at least two prior shoplifting convictions. 
For the June 13, 2001 shoplifting conviction, the judge sentenced Mathis to
three years confinement with credit given for sixty-two days jail time already
served.  For the August 19, 2001 shoplifting conviction, the judge also sentenced
Mathis to three years confinement with credit given for sixty-two days already
served.  The judge ordered these sentences to run concurrently.

LAW/ANALYSIS

On appeal, Mathis argues that the trial
judge did not have jurisdiction to accept the guilty pleas and sentence Mathis
for shoplifting, third offense or above, because the indictments did not allege
that these charges were third offense or above. 

Mathis was indicted for shoplifting items
with a value of one thousand dollars or less.  South Carolina Code section 16-13-110
provides that a person found guilty of shoplifting is guilty of a:

misdemeanor triable in magistrate’s court and, upon conviction,
must be fined not more than five hundred dollars or imprisoned not more than
thirty days if the value of the shoplifted merchandise is one thousand dollars
or less. 

S.C. Code Ann. § 16-13-110(B)(1) (Supp. 2001). 
Section 16-1-57 of the South Carolina Code provides:  “A person convicted of
an offense for which the term of imprisonment is contingent upon the value of
the property involved must, upon conviction for a third or subsequent offense,
be punished as prescribed for a Class E felony.”  S.C. Code Ann. § 16-1-57 (Supp.
2001).  A Class E felony provides for a sentence of not more than ten years. 
See S.C. Code Ann. § 16-1-20(A)(5) (Supp. 2001).

Mathis cites State v. Hamilton,
327 S.C. 440, 486 S.E.2d 512 (Ct. App. 1997) as support for his argument that
the indictment must allege third offense or above in order for the accused to
be sentenced as such.  We acknowledge that the court in Hamilton states
that prior convictions of burglary, when used to enhance a charge to first-degree
burglary, are an element of the offense.  However, prior convictions are an
element of the offense of first-degree burglary by virtue of the statute.  South
Carolina Code section 16-11-311 provides that a person is guilty of burglary
in the first degree when “the burglary is committed by a person with a prior
record of two or more convictions for burglary or housebreaking or a combination
of both.”  S.C.Code Ann. § 16-11-311(A)(2) (Supp. 2001).

In State v. Scriven, 339 S.C. 333,
529 S.E.2d 71 (Ct. App. 2000), the appellant was convicted and sentenced under
South Carolina Code section 44-53-370, which makes it illegal to distribute
marijuana and cocaine.  The appellant argued that the trial court erred in sentencing
him as a third time offender because the indictment did not allege his prior
drug convictions.  However, this Court found: “Although [section 44-53-370]
contains provisions for sentence enhancement upon conviction for a second or
greater offense, these provisions are not elements of the offense.”  Id.
at 338, 529 S.E.2d at 73.  “Where a statute increases the punishment for a second
or subsequent offense, the allegation that the offense charged in the indictment
was of that character is unnecessary.”  Id. at 337-38, 529 S.E.2d at
73.        

Section 16-1-57 does increase the
punishment for a third or subsequent offense for crimes such as shoplifting. 
However, section 16-13-110, which defines the offense of shoplifting, does not
make prior convictions an element of the offense.  Therefore, it was not necessary
to allege third or subsequent offense in the indictment.  See Browning
v. State, 320 S.C. 366, 465 S.E.2d 358 (1995) (true test of sufficiency
of an indictment is whether it contains the necessary elements).

For the foregoing reasons, we hold that the trial
judge did not err in accepting Mathis’s guilty pleas and sentencing him for
shoplifting, third or subsequent offense, even though the indictment did not
allege that this was a third or subsequent offense.  The decision of the trial
court is

AFFIRMED.

HEARN, C.J., GOOLSBY, and SHULER, JJ., concur.