State v. Benjamin

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.

Furman Benjamin, Appellant.

Appeal From Florence County

John M. Milling, Circuit Court Judge

Unpublished Opinion No. 2008-UP-569

Submitted October 1, 2008 – Filed October
13, 2008

VACATED AND REMANDED

Attorney General Henry Dargan McMaster, Chief Deputy Attorney
General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott,
Senior Assistant Attorney General Norman Mark Rapoport, all of Columbia;
Solicitor E.L. Clements, III, of Florence, for Appellant.

Appellate Defender Eleanor Duffy Cleary, of Columbia, for
Respondent.

PER CURIAM:  Furman
Benjamin was indicted for attempted armed robbery, assault with intent to kill,
and possession of a weapon during the commission of a violent crime.  Following
a jury trial, he was convicted of the attempted armed robbery and weapon
possession charges, and was acquitted of the assault with intent to kill
charge.  The State appeals from the trial judge’s sentencing of Benjamin as a
youthful offender for the attempted armed robbery charge.  We vacate and
remand.

Under
the Youthful Offender Act, a youthful offender is defined in pertinent part as
an offender who is:

seventeen
but less than twenty-five years of age at the time of conviction for an offense
that is not a violent crime, as defined in Section 16-1-60, and that is
a misdemeanor, a Class D, Class E, or Class F felony, or a felony which
provides for a maximum term of imprisonment of fifteen years or less.

S.C.
Code Ann. § 24-19-10(d)(ii) (2007) (emphasis added).  Under section 16-1-60,
attempted armed robbery is included within the statutorily defined violent
crimes.  S.C. Code Ann. § 16-1-60 (Supp. 2007).  Accordingly, Benjamin does not
qualify for a youthful offender sentence.  Benjamin’s sentence for attempted armed robbery is therefore vacated, and
the matter is remanded for re-sentencing.

VACATED
AND REMANDED.

HEARN, C.J.,
HUFF and GEATHERS, JJ., concur.