State v. Barrentine

THE STATE OF SOUTH CAROLINA

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.

Barry Barrentine,                                       
Appellant.

Appeal From York County

John C. Hayes, III, Circuit Court Judge

Unpublished Opinion No. 2004-UP-166

Submitted January 29, 2004 – Filed March 15, 2004

VACATED

Chief Attorney Daniel T. Stacey, SC Office of Appellate Defense,
of Columbia, for Appellant.

Attorney General Charles M. Condon, Chief Deputy Attorney
General John W. McIntosh, Assistant Attorney General W. Rutledge Martin, all
of Columbia; and Solicitor Thomas E. Pope, of York, for Respondent.

PER CURIAM:  Barry Barrentine
appeals his conviction and sentence for second-degree criminal sexual conduct
with a minor.  It resulted from a guilty plea upon an indictment that
charged him with first-degree criminal sexual conduct with a minor, allegedly
a seven-year-old female.  Barrentine contends the trial court lacked jurisdiction
to accept that plea because second-degree criminal sexual conduct with a minor
[1] is not a lesser-included offense of first-degree criminal sexual
conduct with a minor. [2]  We agree. [3]  
Cohen v. State, 354 S.C. 563, 582 S.E.2d 403 (2003).

VACATED.

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

[1] S.C. Code Ann. § 16-3-655(2) (2003)
defines second-degree criminal sexual conduct with a minor as a “sexual battery
with a victim who is fourteen years of age or less but who is at least eleven
years of age.”

[2] S.C. Code Ann. § 16-3-655(1) (2003)
defines first-degree criminal sexual conduct with a minor as a “sexual battery
with [a] victim who is less than eleven years of age.”

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