Writ of Certiorari
The Supreme Court of South Carolina reversed and remanded a case for resentencing on July 12, 2010 involving a criminal sexual conduct charge. Nicholas Boan, the petitioner in the matter, had also been charged with two (2) counts of lewd act upon a child along with the instant offense. At sentencing the judge orally announced that Boan would receive twenty years for the first offense; however, the written sentencing order indicated he would serve thirty years. His trial counsel made no motions to this error and Boan's direct appeal was dismissed. Boan attempted to file a motion for post-conviction relief and it was denied.
In addressing this sentencing issue within a writ of certiorari, Boan alleged that he had been provided ineffective assistance of counsel since his counsel failed to respond to the sentencing discrepancy relating to his first offense. The Supreme Court found that this case, in fact, passed the two-pronged test in determining ineffective assistance. Boan showed that his counsel was deficient in failing to file a motion and also proved that this mistake prejudiced him as he would have likely been sentenced to a lesser term. The Court also reasoned that an oral pronouncement is binding over a written order since a Defendant's due process rights would be violated otherwise; meaning the Defendant has a right to be present during sentencing. As such, the Supreme Court ordered the first offense be remanded to the lower court for resentencing.
In this type of case, it is important for your appellate counsel to review the transcripts from the record below in order to determine if there are any issues that can be addressed on appeal. Our appellate attorneys in South Carolina are knowledgeable in these types of cases and can assist you in your appeal.
If you are seeking to file an appeal in the South Carolina Court of Appeals, please contact one of our South Carolina appellate attorneys today for a free consultation at 1-800-94-TRIAL.
