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Henry v. State

Supreme Court of South Carolina
Jul 8, 1981
280 S.E.2d 536 (S.C. 1981)

Summary

holding trial court lacked authority to impose banishment from state if probation was revoked as a condition of probation, even though defendant appeared to agree to the sentence

Summary of this case from State v. Allen

Opinion

21513

July 8, 1981.

Appellate Defender John L. Sweeny and Asst. Appellate Defender Tara D. Shurling, S.C. Commission of Appellate Defense, Columbia, for appellant.

Atty. Gen. Daniel R. McLeod, Asst. Atty. Gen. William K. Moore and Staff Atty. Donald J. Zelenka, Columbia, for respondent.


July 8, 1981.


This is an appeal from an order denying appellant's petition for post conviction relief.

Appellant pled guilty to thirty (30) counts of forgery and, although there was justifiable confusion as to the exact meaning of the sentences imposed, apparently the lower court has correctly construed the sentences to require service of seven (7) years on one indictment with corresponding seven (7) year concurrent sentences on all other indictments. The concurrent sentences, except the first, were suspended and appellant was placed on probation for five (5) years, with a condition that, in the event the probation was revoked, appellant would be banished from the State of South Carolina during the period of probation.

In this appeal, appellant sought relief from the alleged ambiguous sentences and also from the condition of probation requiring banishment from the State in the event of revocation of his probation. The construction placed by the trial judge on the sentence appears proper and is affirmed.

However, the trial judge was without authority to impose banishment from the State as a condition of probation, even if appellant agreed to the sentence. This portion of the sentence is therefore invalid. The fact that appellant has not yet violated his probation, so as to make active the banishment provision, does not deprive him of standing to attack the legality of that requirement in this post conviction proceeding. State v. Gilliam, 274 S.C. 324, 262 S.E.2d 923.

Affirmed in part and reversed in part, in accordance with the foregoing views.

LITTLEJOHN, NESS, GREGORY and HARWELL, JJ., concur.


Summaries of

Henry v. State

Supreme Court of South Carolina
Jul 8, 1981
280 S.E.2d 536 (S.C. 1981)

holding trial court lacked authority to impose banishment from state if probation was revoked as a condition of probation, even though defendant appeared to agree to the sentence

Summary of this case from State v. Allen

In Henry v. State, 276 S.C. 515, 280 S.E.2d 536 (1981), we held that the trial judge was without authority to impose banishment from the state as a condition of probation, even if the defendant agreed to the sentence, because such a condition violates public policy.

Summary of this case from State v. Brown
Case details for

Henry v. State

Case Details

Full title:Albert O. HENRY, Appellant, v. STATE of South Carolina, Respondent

Court:Supreme Court of South Carolina

Date published: Jul 8, 1981

Citations

280 S.E.2d 536 (S.C. 1981)
280 S.E.2d 536

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When the trial court orders a defendant to leave a broad geographical region, often characterized as…

State v. Brown

24 C.J.S. Criminal Law § 1618(8) (1961). In Henry v. State, 276 S.C. 515, 280 S.E.2d 536 (1981), we held that…