Appellant was convicted of stalking under S.C. Code Ann. § 16-3-1070 (Supp. 1994). While this appeal was pending, § 16-3-1070 was expressly repealed without a saving clause and a new stalking statute was enacted redefining this crime. See 1995 S.C. Act No. 94. A conviction must be vacated if the penal statute the defendant is charged with violating is repealed without a saving clause while the case is pending on appeal. State v. Spencer, 177 S.C. 346, 357-58, 181 S.E. 217 (1935).1 Accordingly, appellant’s conviction is
Vacated.
Finney, C.J., and Toal, Waller, and Burnett, JJ., concur.In the recent case of State v. Varner, 310 S.C. 264, 423 S.E. (2d) 133 (1992), this Court held an appellant is not entitled to the lesser sentence provided by-amendment to a penal statute when the amendment becomes effective while the case is pending on appeal. Varner does not apply here. As noted in Spencer, supra, a statutory change in punishment is distinguishable from the repeal of a criminal law defining the crime itself.