Opinion
19634
June 7, 1973.
Appeal from Common Pleas Court, of Richland County; John Grimball, Judge.
Robert R. Madama, Jr., Esq., of Columbia, for Appellant, cites: As to the Trial Court's having jurisdiction to determine this controversy and an affirmative duty to do so: 257 S.C. 361; Uniform Post Conviction Relief Act; Section 17-601(a)(1) through (3). As to Appellant's being deemed to have been convicted and sentenced as a misdemeanant, not a felon: Section 46-150.87:1 of the Code of Laws of South Carolina; 254 S.C. 321; 256 S.C. 149; Section 16-11 of the Code of Laws of the State of South Carolina; Section 46-150.86 of the Code of Laws of South Carolina; 87 S.C. 535. As to the State of South Carolina being estopped, because of the former jeopardy provisions of the Fifth Amendment to the United States Constitution from obtaining a new sentence: Section 16-553; Section 16-552; 163 U.S. 662; 195 U.S. 100; 395 U.S. 711; 401 U.S. 371; 31 L.Ed.2d 424; 395 U.S. 337; 31 L.Ed.2d 36; 407 U.S. 67; 399 U.S. 235; 399 U.S. 508; 401 U.S. 395; 401 U.S. at 397-398.
Messrs. Daniel R. McLeod, Atty. Gen., and Emmet H. Clair, Robert M. Ariail, Asst. Attys. Gen., of Columbia, for Respondent, cite: As to the lower Court's properly holding that it did not have jurisdiction to vacate, alter or amend the sentence imposed upon Appellant: Uniform Post Conviction Relief Act, 1969, Acts and Joint Resolutions of the General Assembly of the State of South Carolina, page 158, Section 17-601, et seq., Code of Laws of South Carolina, 1962, as amended. As to the Appellant's being properly sentenced for the violation of Section 46-150.87:1: Act number 402, 1957 Acts and Joint Resolutions of the General Assembly of the State of South Carolina at page 595; Code of Laws of South Carolina, 1962, as Title 46, Chapter 3, Articles 1 through 5, Sec. 46-139 through 46-150.95; 320 S.C. 195, 95 S.E.2d 160; 235 S.C. 11, 109 S.E.2d 716.
June 7, 1973.
Cecil Tommy Fields, the appellant, was sentenced to pay a fine of $4,000.00 or serve a term of four years imprisonment. He was indigent, and was therefore, compelled to begin serving the sentence of four years.
He applied to the Court of Common Pleas of Richland County for post-conviction relief. His contention is that the execution of the alternative sentence deprived him of equal protection of the laws as guaranteed by the Fourteenth Amendment of the Constitution of the United States. He argues that he is incarcerated solely because he lacked funds with which to pay the fine imposed.
The lower court denied relief. Fields has appealed.
The same issue involved herein is before the Court in the case of Richards, etc. v. Crump, etc. et al., 197 S.E.2d 298, being filed herewith.
For the reason stated in that opinion, we are of the view that Fields is entitled to be resentenced by the Florence County Court of General Sessions and, accordingly, the case is
Remanded.
LEWIS, BUSSEY, BRAILSFORD and LITTLEJOHN, JJ., concur.