S.E. 2d
THE STATE OF SOUTH CAROLINA
In The Supreme Court
Clifton David Scott, Respondent,
v.
State of South Carolina, Petitioner.
ON WRIT OF CERTIORARI
Appeal From Greenville County
Hubert E. Long, Trial Judge
Thomas L. Hughston, Jr., Post-Conviction Judge
Opinion No. 24901
Submitted December 16, 1998 - Filed February 16, 1999
AFFIRMED
Attorney General Charles M. Condon, Deputy
Attorney General John W. McIntosh, Assistant
Deputy Attorney General Teresa A. Knox, all of
Columbia, for petitioner.
Howard W. Paschal, Jr., of Greenville, for respondent.
WALLER, A.J.: Petitioner (the State) petitions the Court to reverse
the order of the post-conviction relief (PCR) judge granting relief to respondent. We
affirm.
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SCOTT v. STATE
FACTS
A jury in 1989 convicted respondent of trafficking in and
transportation of 23.17 grams of cocaine. A circuit judge sentenced respondent
to thirty years in prison and a $50,000 fine on the trafficking conviction, and
one year, concurrent, on the transportation conviction. The judge, without
objection from respondent's trial attorney, sentenced respondent as a second
offender because he had a 1987 misdemeanor conviction for simple possession
of marijuana. The convictions and sentences were affirmed. State v. Scott, 303
S.C. 360, 400 S.E.2d 784 (Ct. App. 1991).
Respondent filed a PCR application dated January 2, 1995. At a
PCR hearing in February 1997, respondent testified he was arrested on
Christmas Day in 1987 and charged with the possession of a single joint of
marijuana. He was released almost immediately on a personal recognizance
bond. The only court record either respondent or the State could find on the
1987 case was a copy of respondent's criminal record showing that he "forf $218"
on the marijuana charge.
The PCR judge concluded the disposition of the 1987 marijuana
charge was a bond forfeiture -- not a conviction -- because S.C. Code Ann. 44-
53-470 (1985)1 does not define "conviction" to include a bond forfeiture. The
judge reasoned that by defining a bond forfeiture as the equivalent of a
conviction in other second offense statutes, such as statutes prohibiting driving
under the influence of alcohol (DUI), the Legislature must have intentionally
omitted bond forfeitures from the definition of second offense in Section 44-53-
470. Consequently, the judge vacated respondent's sentence and ordered that
he be resentenced as a first offender on the 1989 cocaine trafficking charge.
1 Section 44-53-470 states:
An offense is considered a second or subsequent offense, if, prior to
his conviction of the offense, the offender has at any time been
convicted under this article or under any State or Federal, statute
relating to narcotic drugs, marihuana, depressant, stimulant, or
hallucinogenic drugs.
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SCOTT v. STATE
ISSUE
Did the PCR judge err in holding that respondent was
improperly sentenced for a second offense because his
prior 1987 marijuana case did not result in a
conviction?
DISCUSSION
The State contends the PCR judge erred in granting respondent's
application because respondent was convicted of simple possession of marijuana
in1987. It was a conviction -- not a bond forfeiture -- and the penalty for that
conviction was the forfeiture of his bond. Therefore, the State argues,
respondent properly was sentenced as a second offender in the 1989 cocaine
trafficking case. The State also contends respondent has failed to meet his
burden of proof. We disagree.
"To establish a claim of ineffective assistance of trial counsel, a PCR
applicant has the burden of proving counsel's representation fell below an
objective standard of reasonableness and, but for counsel's errors, there is a
reasonable probability that the result at trial would have been different.... A
reasonable probability is a probability sufficient to undermine confidence in the
outcome of the trial." Johnson v. State, 325 S.C. 182, 186, 480 S.E.2d 733, 735
(1997) (citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984)). Thus, a PCR applicant must show both error and
prejudice to win relief in a PCR proceeding.
The burden is on the applicant in a post-conviction proceeding to
prove the allegations in his application. Butler v. State, 286 S.C. 441, 334
S.E.2d 813 (1985). An appellate court must affirm the PCR court's decision
when its findings are supported by any evidence Of probative value. Cherry v.
State, 300 S.C. 1152 386 S.E.2d 624 (1989). However, an appellate court will not
affirm the decision when it is not supported by any probative evidence. Holland
v. State, 322 S.C. 111, 470 S.E.2d 378 (1996).
A. ERROR
We agree with the PCR judge that respondent's 1987 marijuana
was a bond forfeiture, not a conviction. The only available court record shows
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SCOTT v. STATE
that respondent "forf $218" on the charge. A further indication that respondent
forfeited a bond is that $218 is the maximum bond forfeiture a magistrate may
confirm as a judgment. S.C. Code Ann. 17-15-170 (Supp. 1997). The question,
then, is whether the trial judge was required to treat that bond forfeiture as a
conviction.
"In the interpretation of statutes, our sole function is to determine
and, within constitutional limits, give effect to the intention of the legislature,
with reference to the meaning of the language used and the subject matter and
purpose of the statute." State v. Ramsey, 311 S.C. 555, 561, 430 S.E.2d 511,
515 (1993). "A basic presumption exists that the legislature has knowledge of
previous legislation when later statutes are passed on a related subject."
Berkebile v. Outen, 311 S.C. 50, 53, 426 S.E.2d 760, 762 (1993); accord Bell v.
South Carolina State Highway Dept, 204 S.C. 462, 30 S.E.2d 65 (1944),
overruled on other arounds in McCall by Andrews v. Batson, 285 S.C. 243, 329
S.E.2d 741 (1985). Furthermore, penal statutes must be construed strictly
against the State in favor of the defendant. Williams v. State, 306 S.C. 89, 410
S.E.2d 563 (1991).
The Court of Appeals, in deciding that a bond forfeiture in a traffic
case may not be used as an admission or for impeachment purposes in a
subsequent civil case, distinguished a conviction or guilty plea from a bond
forfeiture.
A forfeiture by its very nature differs from a guilty plea
because it involves the failure of a person to act rather
than an affirmative act admitting wrongdoing. It may
also result from any of a variety of reasons, other than
the intention to either make an admission or imply one
by "silence," e.g., the cost of defense as well as the
indirect economic loss and inconvenience of a court
appearance as compared with the consequence of a
forfeiture.
Samuel v. Mouzon, 282 S.C. 616, 620, 320 S.E.2d 482, 485 (Ct. App. 1984).
Similarly, a Louisiana court stated in a defamation case that "[a]
conviction is a judicial determination of guilt. A forfeiture of bond is a decision
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SCOTT v. STATE
by the person charged not to appear for trial, thereby avoiding a judicial
determination of guilt or innocence." Hopkins v. Keith, 348 So.2d 999, 1002
(La. Ct. App. 1977) (affirming summary judgment for defendant newspaper
sued because story failed to fully distinguish between bond forfeiture and
conviction, a distinction that is unclear to much of the public). See also 8A
Am.Jur.2d Bail and Recognizance 113 (1997) (bond forfeiture proceeding "does
not involve the guilt or innocence, conviction or acquittal, of any person . . . .
Rather, a bail bond forfeiture and the judgment thereon against a surety is a
civil action to enforce the surety's contract with the state"); 8 C.J.S. Bail 5,
160-178 (1988) (discussing purpose and forfeiture of bail bond).
This Court has held that a bond forfeiture is equivalent to a
conviction when the Legislature has defined it as a conviction by statute. See
State v. Smith, 276 S.C. 494) 280 S.E.2d 200 (1981) (noting that statute makes
a bond forfeiture in a DUI case equivalent to a conviction); Southern Farm
Bureau Casualty Ins. Co. v. Ausborn, 249 S.C. 627, 636, 155 S.E.2d 902, 907
(1967) (concluding an insured made false statements on application by not
revealing bond forfeitures, which were defined as convictions under two
statutes); State v. Langford, 223 S.C. 20, 25, 73 S.E.2d 854, 856 (1953)
(explaining how Legislature closed a loophole in 1947 by defining a conviction
under DUI statutes to include bond forfeitures).2
We have found no case in South Carolina or elsewhere, and the
parties have cited none, in which a court explicitly declared that a bond
forfeiture is equivalent to a conviction, absent a statute declaring it to be a
2 Other states have reached the same conclusion. Eg., Fetters v. Degnan,
250 N.W.2d 25 (Iowa 1977) (bond forfeiture is equivalent to a conviction in DUI
case because lawmakers defined it as a conviction under DUI statutes); Bennett
v. Mississippi, 528 So.2d 815 (Miss. 1988) (same); Pryor v. David, 436 S.W.2d
3 (Mo. 1969) (same); City of Minot v. Mattern, 449 N.W.2d 560 (N.D. 1989)
(same); Virginia v. Brumfield, 295 S.E.2d 878 (Va. 1982) (same); In re Sparks,
212 S.E.2d 220 (N.C. Ct. App. 1975) (same); Illinois v. Harvey, 285 N.E.2d 179
(Ill. Ct. App. 1972) (same); see also Olim v. Mayberry, 524 P.2d 24 (Okla. 1974)
(upholding constitutionality of statute making bond forfeiture a conviction in
traffic offenses); Pigue v. Florida, 567 So.2d 530 (Fla. Dist. Ct. App. 1990)
(concluding it was error to assess sentencing points for a bond forfeiture where
sentencing rules did not define conviction to include a bond forfeiture).
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SCOTT v. STATE
conviction. The Legislature presumably was aware it had defined a conviction
to include bond forfeitures in other statutes.3 See Berkebile v. Outen, supra.
We conclude the Legislature did not intend for a bond forfeiture to
be the equivalent of a conviction under Section 44-53-470. We further conclude
the record contains probative evidence supporting the PCR judge's conclusion
that respondent's trial attorney erred in failing to challenge the trial judge's
decision to treat the 1987 marijuana bond forfeiture as a first offense.
3 Criminal statutes in which the Legislature appears to recognize the
distinction between a bond forfeiture and a conviction include: S.C. Code Ann.
56-5-2940 (Supp. 1997) (prior offense includes conviction, guilty plea, nolo
contendere plea, or bond forfeiture in DUI case in South Carolina or any other
state); S.C. Code Ann. 56-1-630(3) (1991) (defining bond forfeiture as a
conviction for purposes of reporting traffic convictions to other states); S.C. Code
Ann. 56-1-1310 (1991) (defining "convicted" under statutes governing
provisional drivers' licenses to include conviction, bond forfeiture, guilty plea,
and nolo contendere plea); S.C. Code Ann. 56-5-2780(B) (Supp. 1997)
(defendant guilty of passing stopped school bus if he is convicted, enters guilty
or nolo contendere plea, or forfeits bond); S.C. Code Ann. 56-5-6220 (1991)
(entry of guilty plea, nolo contendere plea, or forfeiture of bond for violation of
any traffic law shall have same effect as a conviction); S.C. Code Ann. 61-6-
4220 (Supp. 1997) (prior offense includes conviction, guilty plea, nolo contendere
plea, or bond forfeiture in alleged violation of any state or federal law relating
to sale and distribution of alcoholic liquors).
Licensing statutes in which the Legislature has defined a bond forfeiture
as the equivalent of a conviction include: S.C. Code Ann. 23-6-440(B)(4)
(Supp. 1997) (licensing of law enforcement officers); S.C. Code Ann. 40-15-
190(A)(2) (Supp. 1997) (licensing of dentists); S.C. Code Ann. 40-37-220(2)
(1986) (licensing of optometrists); S.C. Code Ann. 40-38-220(2) (1986)
(licensing of opticians); S.C. Code Ann. 40-55-150(A)(2) (Supp. 1997) (licensing
of psychologists); S.C. Code Ann. 40-61-90(2) (1986) (licensing of
environmental sanitarians); S.C. Code Ann. 40-63-110(2) (Supp. 1997)
(licensing of social workers); S.C. Code Ann. 40-69-140(24) (Supp. 1997)
(licensing of veterinarians); S.C. Code Ann. 40-75-170(A)(2) (Supp. 1997)
(licensing of professional counselors).
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SCOTT v. STATE
B. PREJUDICE
The trial judge, treating the 1987 marijuana case as respondent's
first conviction, sentenced respondent as a second offender to thirty years in
prison and a $50,000 fine on the 1989 cocaine trafficking conviction. The
maximum sentence a defendant faces for a first offense under Section 44-53-
370(e) is ten years and a $25,000 fine.4 We conclude the record contains
probative evidence supporting the PCR judge's conclusion that respondent was
prejudiced by his trial attorney's error.
CONCLUSION
We affirm the PCR judge's decision and remand the case for
respondent to be resentenced as a first offender.
AFFIRMED.
FINNEY, C.J., TOAL, MOORE, and BURNETT, JJ., concur.
4 The Legislature increased the penalties in July 1988 for certain drug
trafficking convictions, including those applicable in this case. Act No. 565,
1988 Acts 4903. The same penalties remain in effect today. S.C. Code Ann.
44-53-370(e)(2)(a) (Supp. 1997).
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