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State v. Baucom5/8/2000
ON WRIT OF CERTIORARI TO THE COURT OF APPEALS
Appeal From York County John C. Hayes, III, Circuit Court Judge
Heard March 22, 2000
REVERSED AND REMANDED
Petitioner asks this Court to reverse an opinion of the Court of Appeals affirming the trial court's decision to permit the State to use a pardoned offense to enhance the sentence for a subsequent offense. We reverse and remand for resentencing.
FACTS
In 1993, the South Carolina Board of Probation, Parole, and Pardon Services issued petitioner a pardon for the following ten offenses:
11/25/81 Public Disorderly Conduct
7/28/82 Assault and Battery
7/28/83 Destruction of Property
8/30/84 Simple Possession of Marijuana
5/19/86 Public Disorderly Conduct
6/16/86 Driving Under the Influence First
7/14/86 Possession of Marijuana
1/31/90 Disorderly Conduct and Violation of Open Container
5/24/90 Pointing a Firearm and Violation of SC Gun Law
7/24/90 Driving Under the Influence Second
In July 1995, petitioner was charged with DUI, third offense. Petitioner argued the 1995 DUI should be treated as a first offense, since his two prior DUIs were pardoned. After a hearing, the trial court ruled petitioner's pardoned offenses could be used to enhance the 1995 DUI charge. Petitioner appealed the trial court's ruling, but this Court dismissed the appeal without prejudice as premature.
Shortly thereafter, petitioner was again arrested for DUI and brought before the same judge. Relying on his earlier ruling, the judge allowed the State to use petitioner's pardoned 1990 offense to enhance the current charge. After a bench trial, petitioner was convicted of DUI, second offense. A divided Court of Appeals affirmed petitioner's conviction. State v. Baucom, 334 S.C. 371, 513 S.E.2d 112 (Ct. App. 1999).
ISSUE
Did the Court of Appeals err in holding a pardoned conviction may be used to enhance a subsequent offense?
DISCUSSION
Petitioner contends his pardoned conviction should not have been used to enhance the current offense. We agree with petitioner and remand for resentencing.
The question presented is one of statutory interpretation and reconciliation. The cardinal rule of statutory construction is to ascertain and effectuate the legislative intent whenever possible. Strother v. Lexington County Recreation Comm'n, 332 S.C. 54, 504 S.E.2d. 117 (1998). "All rules of statutory construction are subservient to the one that the legislative intent must prevail if it can be reasonably discovered in the language used, and that language must be construed in the light of the intended purpose of the statute." Kiriakides v. United Artists Communications, Inc., 312 S.C. 271, 275, 440 S.E.2d. 364, 366 (1994).
Section 24-21-940(A) of the South Carolina Code defines "pardon" to mean "an individual is fully pardoned from all the legal consequences of his crime and of his conviction, direct and collateral, including the punishment, whether of imprisonment, pecuniary penalty or whatever else the law has provided." S.C. Code Ann. § 24-21-940(A) (1989) (emphasis added); see also S.C. Code Ann. § 24-21-1000 (1989) (" certificate of pardon shall be issued by the Board stating that the individual is absolved from all legal consequences of his crime and conviction, and that all of his civil rights are restored.") (emphasis added). Section 24-21-990 provides:
A pardon shall fully restore all civil rights lost as a result of a conviction, which shall include
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