S.E. 2d
THE STATE OF SOUTH CAROLINA
In The Supreme Court
Danny Lee Sullivan, Respondent,
v.
The State, Petitioner.
Appeal From Greenville County
Frank Eppes, Trial Judge
Thomas L. Hughston, Jr., Post-Conviction Judge
ORDER
Assistant Appellate Defender Aileen P. Clare and
Chief Attorney Dan T. Stacey, both of the South
Carolina Office of Appellate Defense, of Columbia,
for respondent.
Attorney General Charles Molony Condon, Chief
Deputy Attorney General John W. McIntosh, and
Assistant Deputy Attorney General Teresa A. Knox,
all of Columbia, for petitioner.
PER CURIAM: It is ordered that the opinion heretofore filed,
Opinion No. 24822, filed July 27, 1998, be withdrawn and the attached
opinion be substituted.
p.10
Sullivan v. State
AND IT IS SO ORDERED
C.J.
A.J.
A.J.
A.J.
A.J.
Columbia, South Carolina
August 17, 1998
p.11
THE STATE OF SOUTH CAROLINA
In The Supreme Court
Danny Lee Sullivan, Respondent,
v.
The State, Petitioner.
Appeal From Greenville County
Frank Eppes, Trial Judge
Thomas L. Hughston, Jr., Post-Conviction Judge
Opinion No. 24822
Submitted June 16, 1998 - Filed July 27, 1998
Refiled August 17, 1998
REVERSED
Assistant Appellate Defender Aileen P. Clare and
Chief Attorney Dan T. Stacey, both of the South
Carolina Office of Appellate Defense, of Columbia,
for respondent.
Attorney General Charles Molony Condon, Chief
Deputy Attorney General John W. McIntosh, and
Assistant Deputy Attorney General Teresa A. Knox,
all of Columbia, for petitioner.
FINNEY, C.J.: The circuit court granted respondent Danny Lee
Sullivan post-conviction relief (PCR), finding the retroactive application of a
statute denying respondent parole eligibility violated his ex post facto rights.
We reverse.
Respondent pled guilty to two counts of assault and battery with
intent to kill (ABIK). These offenses were committed on August 31, 1984.
Respondent was sentenced to ten years in prison, suspended upon the service
p.12
Sullivan v. State
of five years probation. Respondent pled guilty in 1988 to voluntary
manslaughter and was sentenced to thirty years in prison. This offense was
committed on September 23, 1987.
Respondent was informed in 1989 by the South Carolina
Department of Probation, Parole and Pardon Services that he was not eligible
for parole because he was serving a sentence for a violent crime, after having
been convicted and sentenced for a separate violent crime. Respondent's
prior conviction was not defined as a violent offense until 1986. In 1994,
respondent was informed that he was no longer considered to be a multi-
violent offender and would become parole eligible because the violent crimes
statute was amended. However, in 1995, respondent was informed that he
was returned to his prior position because of the retroactive amendment to
the violent crime law.
The PCR Judge granted respondent's application for relief and
found that the retroactive application of the violent crime definition for
purposes of parole eligibility violates the ex post facto clause of the State
Constitution. We disagree.
In 1986, S.C. Code Ann. 24-21-640 was amended to provide that
parole may not be granted "nor is parole authorized to any prisoner serving
a sentence for a second or subsequent conviction, for violent crimes as defined
in Section 16-1-60." The violent crime statute, S. C. Code Ann 16-1-60,
effective June 3, 1986, defined ABIK as a violent crime. Section 16-1-60 was
amended effective January 1, 1994 to require that the prior offense had to
be defined as a violent crime at the time of commission of the act. In 1995,
the statute was amended to delete the above restriction.
The violent crime statute was applicable when respondent
committed the second offense in 1987. Accordingly, ABIK was considered a
violent crime making respondent ineligible for parole when he was sentenced
for the voluntary manslaughter committed in 1987. The 1994 and 1995
amendments did not affect respondent's non-eligibility for parole.
Furthermore, it is not a violation of the ex post facto clause for the
legislature to enhance punishment for an offense based on a prior conviction
of the defendant, even though the enhancement provision was not in effect
at the time of the previous offense. State v. Dabney, 301 S.C. 271, 391
S.E.2d 563 (1990). Accordingly, the order granting post-conviction relief is
REVERSED.
TOAL, MOORE, WALLER and BURNETT, JJ., concur.
p.13