In the Interest of Gavin N.

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

In the Interest
of Gavin N., a minor under the age of eighteen, Appellant.

Appeal From Florence County

 A. E. “Gene” Morehead, III, Family Court
Judge

Unpublished Opinion No. 2008-UP-312

Submitted April 1, 2008 – Filed June 20,
2008

AFFIRMED

Appellate Defender LaNelle C. DuRant, of Columbia, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney
General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Senior
Assistant Attorney General Harold M. Coombs, Jr., of Columbia; and Solicitor Edgar
Lewis Clements, III, of Florence, for Respondent.

PER CURIAM: Appellant
appeals the family court’s order finding him guilty of two counts of assault
with intent to commit criminal sexual conduct (ACSC) in the first degree.  We
affirm.[1]

FACTS

On August 10, 2006, Appellant was brought before the family court
for trial on the following charges:  (1) two counts of first degree burglary;
(2) two counts of first degree ACSC; (3) two counts of third degree ACSC; (4)
three counts of assault and battery of a high and aggravated nature (ABHAN); (5)
two counts of strong arm robbery; (6) three counts of petit larceny; (7) one
count of attempted strong arm robbery; and (8) three counts of kidnapping.  Before
the trial commenced, Appellant pled guilty to all charges except the four ACSC
charges.  The family court accepted Appellant’s pleas, postponed sentencing
Appellant on the pleaded offenses until after the trial on the remaining
offense concluded, and proceeded to conduct Appellant’s trial on the remaining
offenses.

At the conclusion of the State’s case in chief, Appellant’s
attorney moved to dismiss the remaining charges on the ground of double
jeopardy.  Appellant’s attorney argued “some of these counts – the testimony
offered and the allegations made in the counts seem to [mirror] what he’s (sic)
already pled to . . . .”  The family court ruled “[d]ouble jeopardy is not
attached.”  Ultimately, the family court found Appellant guilty of both counts
of first degree ACSC and dismissed both counts of third degree ACSC.

LAW/ANALYSIS

Appellant argues
the trial court violated the double jeopardy clause by finding him guilty of
two counts of ACSC because he had pleaded guilty to ABHAN under the same set of facts.  We disagree.

In State
v. Coleman, 365 S.C. 258, 262-63, 616 S.E.2d 444, 446 (Ct. App. 2005)
(citation omitted), this court stated the purpose of the double jeopardy clause:

The Double Jeopardy Clauses of the United States and South Carolina Constitutions protect citizens from being twice placed in
jeopardy of life or liberty. See U.S. Const. amend. V (“No person shall
be . . . subject for the same offence to be twice put in jeopardy of life or
limb . . . .”); S.C. Const. art. I, § 12 (“No person shall be subject for the
same offense to be twice put in
jeopardy of life or liberty . . . .”). Under the law of double jeopardy,
a defendant may not be prosecuted for the same offense after an acquittal, a
conviction, or an improvidently granted mistrial.

The
Supreme Court of the United States has held the Double Jeopardy Clause affords
defendants three protections:

[It] ‘protects
against a second prosecution for the same offense after acquittal.  It protects
against a second prosecution for the same offense after conviction.  And it
protects against multiple punishments for the same offense.’  Where consecutive
sentences are imposed at a single criminal trial, the role of the
constitutional guarantee is limited to assuring that the court does not exceed
its legislative authorization by imposing multiple punishments for the same
offense.  Where successive prosecutions are at stake, the guarantee serves ‘a
constitutional policy of finality for the defendant’s benefit.’ That policy
protects the accused from attempts to relitigate the facts underlying a prior
acquittal, [] and from attempts to secure additional punishment after a prior
conviction and sentence.

Brown v. Ohio, 432 U.S. 161, 165-66 (1977) (internal citations
omitted).  It is well established that ABHAN is a
lesser included offense of ACSC.  See State v. Elliott,
346 S.C. 603, 607, 552 S.E.2d 727, 729 (2001) (overruled on other
grounds).

In Ohio v. Johnson, 467 U.S. 493 (1984), the Supreme Court of the United States
addressed the implications of the Double Jeopardy Clause when a defendant
pleads guilty to a lesser included offense.  The court stated “[t]he acceptance
of a guilty plea to lesser included offenses while charges on the greater
offenses remain pending, moreover, has none of the implications of an ‘implied
acquittal’ which results from a verdict convicting a defendant on lesser
included offenses rendered by a jury charged to consider both greater and
lesser included offenses.”  Id. at 501-2.  The court found that
prosecution of the greater offenses was not barred by the Double Jeopardy
Clause and, specifically held “[w]hile the Double Jeopardy Clause may protect a
defendant against cumulative punishments for convictions on the same offense,
the Clause does not prohibit the State from prosecuting [a defendant] for such
multiple offenses in a single prosecution.”  Id. at 500. 

Here,
Appellant pleaded guilty to lesser offenses.  The trial court accepted the
pleas and held the matter of sentencing in abeyance until Appellant was tried
for the remaining offenses.  Immediately following the acceptance of the guilty
pleas, the trial for the remaining charges was conducted.  At the conclusion of
the trial, the trial court found Appellant guilty of both counts of first degree ACSC, dismissed
both counts of third degree ACSC, and committed Appellant to the custody of the
Department of Juvenile Justice not to exceed his twenty-first birthday.  Appellant was not subjected to cumulative punishments
for convictions on the same offenses.  Accordingly, we find no violation of the
Double Jeopardy Clause.

CONCLUSION

For the reasons stated above, the order of the circuit court is

AFFIRMED.

ANDERSON,
SHORT, and THOMAS JJ., concur.

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