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 Supreme Court

Donnie Harkins,        Petitioner,

v.

State of South Carolina,        Respondent.

ON WRIT OF CERTIORARI

Appeal From Newberry County
Wyatt T. Saunders, Trial Judge
James W. Johnson, Jr., Post-Conviction Relief Judge

Memorandum Opinion No. 2005-MO-001
Submitted December 3, 2004 – Filed January 10, 2005

REVERSED IN PART

Assistant Appellate Defender Aileen P. Clare, South Carolina Office of Appellate Defense, of Columbia, for Petitioner.

Attorney General Henry D. McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley Elliott, Assistant Attorney General Christopher L. Newton, all of Columbia, for Respondent.

PER CURIAM:  Petitioner seeks a writ of certiorari from the denial of his application for post-conviction relief (PCR).  We grant the petition for a writ of certiorari, dispense with further briefing, and reverse the PCR judge’s order in part.

Petitioner pled guilty to three counts of first degree burglary, five counts of second degree burglary, four counts of grand larceny, and two counts of possession of a firearm during a violent crime.  He was sentenced to twenty-five years’ imprisonment for each of the first degree burglary convictions, all to run concurrent, and received suspended sentences for the remainder of his convictions. [1]   Petitioner did not appeal his convictions or sentences.

Petitioner’s convictions stemmed from a crime spree committed by he and two co-defendants.  One of the incidents involved the home of Jeremy Larson.  In the indictment for the burglary of Larson’s home, #00GS36-58 (“indictment 58”), petitioner was indicted for first and second degree burglary, both charges stemming from a single event.  Petitioner pled guilty and was sentenced on both charges.

Petitioner argued trial counsel was ineffective for advising him to plead guilty to first and second degree burglary when the two charges were from the same incident, thus constituting a double jeopardy violation.  The PCR judge found the sentences for both first and second degree burglary on indictment 58 did not constitute double jeopardy.  The PCR judge held, “While the trial record does support that allegation somewhat . . . the sentencing sheets in the case do not, which leads this Court to believe that the trial judge simply misspoke. [2]   No probative evidence was submitted in support of an actual double jeopardy violation.”

The double jeopardy clause protects individuals against a second prosecution for the same offense after an acquittal or conviction, and protects against multiple punishments for the same offense.  State v. Easler, 327 S.C. 121, 489 S.E.2d 617 (1997).  “In Blockburger [3] the United State [sic] Supreme Court held that where the same act or transaction constitutes a violation of two distinct statutory provisions, ‘the test to determine whether these are two offenses or only one is whether each provision requires proof of an additional fact which the other does not.’”  Id.  A lesser-included offense is one that requires no proof beyond that which is required for a conviction of the greater offense.  State v. Cribb, 310 S.C. 518, 426 S.E.2d 306 (1992).  Second degree burglary is a lesser-included offense of first degree burglary.  See State v. Mathis, 355 S.C. 87, 584 S.E.2d 366 (2003).  When there are multiple punishments imposed in the same trial, the double jeopardy clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended.  State v. Wilson, 311 S.C. 382, 429 S.E.2d 453 (1993) (Toal, J., concurring).

Petitioner’s convictions for first and second degree burglary, both stemming from indictment 58, violate the double jeopardy clause.  The indictment shows the charges arose from the same date, place, and dwelling.  The sentencing sheets clearly show petitioner was sentenced for both first and second degree burglary under indictment 58.  Accordingly, there is no evidence to support the PCR judge’s decision that there was no evidence submitted in support of an actual double jeopardy violation.  Pierce v. State, 338 S.C. 139, 526 S.E.2d 222 (2000) (PCR judge will be reversed when decision is controlled by an error of law).  Petitioner’s second degree burglary conviction stemming from indictment 58 is therefore vacated and the portion of the PCR judge’s order addressing the double jeopardy violation is reversed.

REVERSED IN PART.

TOAL, C.J., MOORE, WALLER, BURNETT and PLEICONES, JJ., concur.