State v. Clifford , 335 S.C. 129 ( 1999 )

HOWARD, Judge:

The Appellant was convicted in magistrate’s court of the offense of operating an uninsured motor vehicle in violation of S.C.Code Ann. § 56-10-270 (1991). After sentencing, she appealed to the circuit court, arguing the evidence was legally insufficient to establish a required element of proof. The circuit court agreed, reversing the conviction, but remanding to the magistrate for further proceedings. The order of remand instructed the magistrate to take evidence on whether notice of cancellation was actually issued by the named insurer prior to the offense. Based upon that information and the evidence from the previous trial, the magistrate was instructed to make a new finding as to guilt.

Clifford appeals from the order remanding for further proceedings, arguing double jeopardy bars a re-trail. The State argues appeal of the order of remand is premature, relying on State v. Miller, 289 S.C. 426, 346 S.E.2d 705 (1986). We agree with Clifford that double jeopardy bars re-prosecution, and reverse the order of remand from the Circuit Court.

LAW/ANALYSIS

Initially, we note the State does not challenge the circuit court’s reversal of the conviction grounded upon the insufficiency of the evidence. Consequently, that ruling is the law of the case. State v. Sampson, 317 S.C. 423, 454 S.E.2d 721 (1994) (unappealed ruling is the law of the case). Based upon the circuit court’s conclusion, this case presents a straightforward question of double straightforward

The controlling authority is Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978). In that case the Supreme Court ruled “[t]he double jeopardy clause forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding.” Id., 437 U.S. at 11, 98 S.Ct. 2141. Overruling prior decisions to the contrary, the Court held that “the Double Jeopardy Clause precludes a second trial once the reviewing court has found the evidence legally insufficient, [and] the only ‘just’ remedy available for that court is the direction of a judgment of acquittal.” Id. at 18, 98 S.Ct. 2141. See also Riddle v. State, 314 S.C. 1, 443 S.E.2d 557 (1994); State v. Dasher, 278 S.C. 395, 297 S.E.2d 414 (1982) (Ness, J., dissenting).

We reject the State’s argument that appeal of the order is premature. Our supreme court has ruled that a trial court’s denial of a double jeopardy claim may not be appealed until the trial court had rendered final judgment in the case. Where sentencing of the defendant remains to be done, there has been no final judgment. State v. Miller, 289 S.C. 426, 346 S.E.2d 705 (1986). In the case before us, however, a final sentence was imposed by the trial court at the time of the conviction, a fact which was conceded by the State in oral argument.

The critical distinction between Miller and this case is that in Miller the conviction was reinstated, and the cause remanded for the remainder of the first trial, -without prejudice to the defendant’s right to appeal after final judgment. In this case there was a sentence imposed after a conviction, and there was, therefore, a final judgment. The circuit court has attempted to remand for a second trial, which is in direct violation of the Double Jeopardy Clause.

The distinction between federal appellate procedure and state procedure which our supreme court noted in Miller does not require a different result. The Miller court merely pointed out that state law controls the appealability of the order, and not federal law. South Carolina Code Ann. § 14-3-330 (1976) limits appellate jurisdiction to a review of final judgments, with narrowly-tailored exceptions not applicable here. It has long been the rule in this state that the sentence is the final judgment in a criminal case, from which appeal may be taken by the defendant in accordance with § 14-3-330. See State v. Miller, 289 S.C. 426, 346 S.E.2d 705 (1986) and cases cited therein.

The circuit court has only appellate jurisdiction over a judgment from magistrate’s court. State v. Adler, 278 S.C. 66, 292 S.E.2d 185 (1982). Consequently, the circuit court order in this case constitutes an appellate ruling from a final judgment of the magistrate’s court. That ruling is further reviewable by this court.

We conclude the order of remand violates the Double Jeopardy Clause. In view of the unchallenged order of the circuit court reversing the conviction based on the legal insufficiency of the evidence, this matter is remanded to the trial court with instructions to enter a verdict of acquittal.

REVERSED and REMANDED.

GOOLSBY, J., concurring. HUFF, J., dissenting in a separate opinion.