Dervin v. S.C. - amount of cocaine in trafficking case must be submitted to jury
In Dervin v. S.C., decided December 21st, the South Carolina Supreme Court held that the trial court can only sentence a person based on the amount of drugs that is specifically determined by the jury. In this case, although Dervin was indicted for trafficking cocaine 200 - 400g, the judge told the jury that it could convict her if they believed that she possessed 10 or more grams of cocaine. Because there was no specific finding by the jury as to whether she possessed 10 grams or 400 grams, the judge's sentence of the 25 year mandatory minimum for trafficking > 200 grams violated Apprendi - the jury did not find beyond a reasonable doubt that Dervin possessed anything more than 10 grams of cocaine.
Because Dervin's counsel at trial failed to object to the 25 year sentence, the Court granted her PCR petition and remanded her case for resentencing under the statute for trafficking 10 - 28g, which carries 3-10 years for a first offense.
