¶1dissenting:
¶2I agree with the majority that Alabama v. Shelton, 535 U.S. 654, 122 S.Ct. 1764, 152 L.Ed.2d 888 (2002) should be applied retroactively, and I agree that decision affords Respondent no relief on his 1995 conviction. I disagree, however, with the majority’s conclusion that the 1996 sentence was, at least in part, illegal and would affirm the grant of post-conviction relief (PCR) to Respondent on that conviction.
¶3The majority holds, and I agree, that a magistrate cannot lawfully place a criminal defendant on probation. See S.C.Code Ann. § 22-3-800 (1989) (“Nothing in this section may be construed to give a magistrate the right to place a person on probation”). Here, the magistrate did not place Respondent on probation but instead suspended his sentence, conditioned on six months good behavior. Such a suspension is explicitly authorized by § 22-3-800: “[T]he magistrate at the time of sentence may suspend the imposition or execution of a sentence upon terms and conditions the magistrate considers appropriate.... ” A suspended sentence conditioned upon good behavior “is independent of the Probation and Parole Statutes and suspension of sentences therein provided....” Richards v. Crump, 260 S.C. 133, 194 S.E.2d 575 (1973).
¶4I therefore concur in part and dissent in part.
¶5. I note that in Richardsthe parties conceded that a magistrate could not suspend sentences and thus it does not support the majority's holding that a magistrate lacks this authority. I note as well that the opinion makes no mention of § 43-67.1, the predecessor to § 22-3-800 then in effect.
¶6. In my view, if in fact the original sentence were unlawful, then the suspension would be a nullity and Respondent would be required to serve the original thirty day sentence. As such, the 1996 conviction was obtained in violation of Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972), and PCR was properly granted.