State v. Barrentine

• Court: Court of Appeals of South Carolina
• Decided: March 15, 2004
• Docket: 2004-UP-166
• Status: Unpublished

Opinion

THE STATE OF SOUTH CAROLINA

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

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The State,                                                   Respondent,

v.

Barry Barrentine,                                        Appellant.

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Appeal From York County
John C. Hayes, III, Circuit Court Judge

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Unpublished Opinion No. 2004-UP-166
Submitted January 29, 2004 – Filed March 15, 2004

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VACATED

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Chief Attorney Daniel T. Stacey, SC Office of Appellate Defense, of Columbia, for Appellant.

Attorney General Charles M. Condon, Chief Deputy Attorney General John W. McIntosh, Assistant Attorney General W. Rutledge Martin, all of Columbia; and Solicitor Thomas E. Pope, of York, for Respondent.

PER CURIAM:  Barry Barrentine appeals his conviction and sentence for second-degree criminal sexual conduct with a minor.  It resulted from a guilty plea upon an indictment that charged him with first-degree criminal sexual conduct with a minor, allegedly a seven-year-old female.  Barrentine contends the trial court lacked jurisdiction to accept that plea because second-degree criminal sexual conduct with a minor ^[1] is not a lesser-included offense of first-degree criminal sexual conduct with a minor. ^[2]  We agree. ^[3]   Cohen v. State, 354 S.C. 563, 582 S.E.2d 403 (2003).

VACATED.

GOOLSBY, HOWARD, and KITTREDGE, JJ., concur.

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^[1] S.C. Code Ann. § 16-3-655(2) (2003) defines second-degree criminal sexual conduct with a minor as a “sexual battery with a victim who is fourteen years of age or less but who is at least eleven years of age.”

^[2] S.C. Code Ann. § 16-3-655(1) (2003) defines first-degree criminal sexual conduct with a minor as a “sexual battery with [a] victim who is less than eleven years of age.”

^[3] We decide this case without oral argument pursuant to Rule 215, SCACR.