State v. Davis

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.

Russell Davis,       
Appellant.

Appeal From Aiken County

James C. Williams, Jr., Circuit Court
Judge

Unpublished Opinion No. 2004-UP-209

Submitted January 29, 2004 – Filed March
25, 2004

AFFIRMED

Assistant Appellate Defender Robert M. Pachak, Office of Appellate
Defense, of Columbia, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney
General John W. McIntosh, Assistant Attorney General Deborah R.J. Shupe, all
of Columbia; and Solicitor Barbara R. Morgan, of Aiken, for Respondent.

PER CURIAM:  Appellant was convicted of
trafficking in methamphetamine and unlawful carrying of a pistol, and he was
sentenced.  On appeal, Appellant argues that the trial court erred in sentencing
him for second offense trafficking under S.C. Code Ann. § 44-53-375(C)(1) when
his prior drug conviction was for possession of a controlled substance.  We
affirm.       

I.                 
FACTS AND PROCEDURAL HISTORY

On December 28, 2001, Appellant, a commercial truck
driver, was stopped at a weigh station on Interstate 20 in Aiken County, South
Carolina.  Appellant told one of the officers that there was a gun in the cab
of his truck.   In addition to a 9 millimeter pistol, the officer discovered
.11 grams of cocaine and 21.99 grams of methamphetamine in the truck.  

Appellant was indicted for trafficking in methamphetamine,
possession of cocaine, and unlawful carrying of a pistol.  He was tried on April
29, 2003 before the Honorable James C. Williams and a jury. 

Appellant was convicted of trafficking in methamphetamine
and unlawful carrying of a pistol and was sentenced.  His drug related conviction
was treated as a “second offense” for sentencing purposes, since Appellant had
a prior conviction from Nevada for possession of a controlled substance.  The
circuit court determined that the conviction would constitute a “second offense”
as defined in S.C. Code Ann. § 44-53-470, thus rejecting Appellant’s argument
that the prior conviction had to be a trafficking offense in order to trigger
the “second offense” sentence pursuant to S.C. Code Ann. § 44-53-375(C)(1)(b). 
This appeal follows.                             

II.              
LAW/ANALYSIS

On appeal, Appellant argues the circuit court erred
in sentencing him for second offense trafficking under S.C. Code Ann. § 44-53-375(C)(1)
when his prior drug offense was for possession of a controlled substance.  Thus,
the issue raised on appeal is the characterization of the trafficking conviction
as a “second offense.”   

 South Carolina Code Ann. § 44-53-375(C) (2003) provides
that any “person who knowingly sells, manufactures, delivers, purchases, or
brings into this State  . . . ten grams or more of ice, crank, or crack cocaine
. . . is guilty of a felony.”  If the amount is ten grams or more, but less
than twenty-eight grams, and the conviction is a “second offense” as defined
by statute, the defendant must be sentenced to imprisonment for not less than
five years nor more than thirty years, and a $50,000 fine.  S.C. Code Ann. §
44-53-375(C)(1)(b).  Under S.C. Code Ann. § 44-53-470, an offense is considered
a second offense if the defendant has a prior conviction under Title 44, Article
53 of the South Carolina Code of Laws, or under “any State or Federal statute
relating to narcotic drugs, marihuana, depressant, stimulant, or hallucinogenic
drugs.” 

Appellant argues that S.C. Code § 44-53-375(C)(1)(b)
only applies when the defendant’s prior conviction is a “trafficking offense.” 
Our court recently rejected this exact argument in State v. Dupree, 354
S.C. 676, 583 S.E.2d 437 (Ct. App. 2003).  In Dupree, the court noted
that the language in § 44-53-375(C) “merely delineates offenses” and that there
is no conflict between Sections 44-53-375(C)(1)(b) and 44-53-470.  Id. 
The court concluded by holding that § 44-53-470 applies to § 44-53-375(C). 
Id. 

Likewise, in  Thomas v. State, 319 S.C.
471, 465 S.E.2d 350 (1995), the court held that the marijuana trafficking statute
and the statute defining “second or subsequent offense” as any drug offense
were part of the same general law and could be read together without conflict. 
The court further noted that “[t]he legislature could not have intended second
or subsequent offenses under [§ 44-53-375(C)(1)] to include only . . . trafficking
when there is a specific statute which defines second or subsequent offenses
as any drug offense.”  Id.     

Thus, pursuant to the holdings in Dupree
and Thomas, and based on Appellant’s prior conviction for possession
of a controlled substance, the circuit court properly sentenced him as a second
time offender under § 44-53-375(C)(1)(b).         

AFFIRMED.

GOOLSBY, HOWARD, and KITTREDGE, JJ., concur.