State v. Suber

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.

Clifton Suber, Appellant.

Appeal From Richland County

 James R. Barber, Circuit Court Judge

Unpublished Opinion No. 2008-UP-680

Submitted November 1, 2008 – Filed
December 9, 2008   

REMANDED

Appellate Defender M. Celia Robinson, of Columbia, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney
General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott,
Assistant Attorney General Christina J. Catoe, and Solicitor Warren Blair
Giese, all of Columbia; for Respondent.

PER CURIAM: Clifton Suber pled guilty to three counts of uttering
a fraudulent check of more than $1,000 and one count of bank fraud. The plea
judge sentenced Suber to ten years on one of the fraudulent check charges; a
consecutive term of ten years on another, suspended with five years probation;
and concurrent sentences of ten years suspended during probation on the
remaining fraudulent check charge and five years suspended during probation on
the bank fraud charge.  The plea judge further directed Suber would
receive no credit for time served. Suber appeals, arguing he is entitled to
credit for time spent in custody awaiting trial and/or sentence.  We
remand.

II.  FACTS

Suber
pled to the above Richland County charges on January 30, 2007.  During the
plea hearing, he informed the judge he had been in jail “on these charges” for
about a year.  Defense counsel corrected that Suber “was in on a Lexington
County fraudulent check charge also,” but stated the charges were “all
related.”  The Lexington County charge resulted in Suber’s imprisonment
for a term of one year and six months in the Department of Corrections, which
he began serving on August 30, 2006.  She explained that prior to August
30, 2006, Suber had been incarcerated “about three months” on both the Richland
and Lexington County charges.  She requested the court consider backdating
Suber’s sentence to August 30, 2006, “and possibly giving him credit for the
time prior to that” of “roughly” three months.  The plea judge stated, “I
assume whatever he has done since August he is getting credit for on the
existing sentence.”  Defense counsel confirmed that he was.  The plea
judge then sentenced Suber as described above and concluded with the statement,
“No credit for time served.”  This appeal followed.

III.  LAW/ANALYSIS

On
appeal, Suber contends the plea judge erred in ruling he would receive no credit
for time spent in custody awaiting trial and/or sentence.  Specifically,
Suber asserts it is apparent from the record that he was entitled to credit for
time spent in custody prior to his commencement of serving the one year and six
month sentence on August 30, 2006, i.e. “about three months.”  

Section
24-13-40 of the South Carolina Code provides, in pertinent part:

In
every case in computing the time served by a prisoner, full credit against the
sentence shall be given for time served prior to trial and
sentencing.   Provided, however, that credit for time served
prior to trial and sentencing shall not be given:  (1) when the prisoner
at the time he was imprisoned prior to trial was an escapee from another penal
institution; or (2) when the prisoner is serving a sentence for one offense and
is awaiting trial and sentence for a second offense in which case he shall not
receive credit for time served prior to trial in a reduction of his sentence
for the second offense.

S.C. Code Ann. § 24-13-40 (2007)
(emphasis in original).  “Section 23-13-40 mandates a prisoner be given
credit for all time served prior to trial unless one of two exceptions
exist:  1) either the prisoner was an escapee or 2) the prisoner was
already serving a sentence on one offense.”  Allen v. State, 339
S.C. 393, 395, 529 S.E.2d 541, 542 (2000).  The matter of credit for time
served under this statute is not discretionary with the trial court.  State
v. McCord, 349 S.C. 477, 487, 562 S.E.2d 689, 694 (Ct. App. 2002). 

Because
Suber was neither an escapee nor serving any sentence during the approximate
three-month period he was incarcerated prior to his August 30 imprisonment on
the Lexington County charge, he is entitled to credit for time served on the
Richland County charges.  See Allen, 339 S.C. at 395-96, 529
S.E.2d at 542 (holding where appellant pled to five offenses resulting from two
separate arrests, he was entitled to credit for time served on first charges
from time he was re-arrested on second charges and bond was revoked on first
charges, as he was clearly in custody on all charges from the date of
re-arrest);  Blakeney v. State, 339 S.C. 86, 88, 529 S.E.2d 9,
10-11 (2000) (noting our courts have held “‘time served’ in § 24-13-40 means
the time during which a defendant is in pre-trial confinement and charged
with the offense for which he is sentenced (so long as he is not serving time
for a prior conviction).”) (emphasis in original).

The
record before us does not contain any evidence of the exact amount of time Suber
spent in jail awaiting trial and sentencing prior to imposition of his
Lexington sentence.  Accordingly, we remand for the plea court to
determine the exact amount of time Suber served on the Richland charges prior
to commencement of his Lexington sentence. 

REMANDED.[1]

HEARN, C.J., KONDUROS, J., and GOOLSBY, A.J., concur.

[1]  Because oral argument would not aid the court
in resolving the issues on appeal, we decide this case without oral argument
pursuant to Rule 215, SCACR.