Hope v. State, 24695
Decision Date | 13 October 1997 |
Docket Number | No. 24695,24695 |
Citation | 492 S.E.2d 76,328 S.C. 78 |
Court | South Carolina Supreme Court |
Parties | Derrick Kernard HOPE, Petitioner/Respondent, v. STATE of South Carolina, Respondent/Petitioner. |
Page 76
v.
STATE of South Carolina, Respondent/Petitioner.
Decided Oct. 13, 1997.
Page 77
[328 S.C. 79] Wanda H. Haile, Senior Assistant Appellate Defender, South Carolina Office of Appellate Defense, Columbia, for petitioner/respondent.
Charles M. Condon, Attorney General, John W. McIntosh, Deputy Attorney General, Teresa A. Knox, Assistant Deputy Attorney General, and Matthew M. McGuire, Assistant Attorney General, Columbia, for respondent/petitioner.
WALLER, Justice:
In March 1987, a jury convicted Derrick Kernard Hope of assault to commit first degree criminal sexual conduct ("CSC") and first degree burglary. He filed for post-conviction relief attacking both convictions. 1 After an evidentiary hearing, a [328 S.C. 80] judge denied relief regarding Hope's conviction for assault with intent to commit first degree CSC, and granted relief regarding his conviction for first degree burglary. This Court granted certiorari.
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ISSUES
I. Did the trial court have subject matter jurisdiction over the charge for which Hope was convicted?
II. Was counsel ineffective in failing to request a jury charge on S.C.Code Ann. § 16-13-170?
I. Subject Matter Jurisdiction
At trial, the judge allowed the State to amend Hope's assault indictment from assault with intent to commit third degree CSC to assault with intent to commit first degree CSC. Hope argues this was error. We agree.
Under S.C.Code Ann. § 17-19-100 (1976), an indictment may be amended because of a variance in evidence produced at trial only if such amendment does not change the nature of the offense charged. Clearly, the amendment here changed the nature of the offense, as we have previously held. State v. Riddle, 301 S.C. 211, 391 S.E.2d 253 (1990) (amendment of indictment from assault with intent to commit third degree CSC to assault with intent to commit first degree CSC deprived court of subject matter jurisdiction). 2 Thus, the PCR judge erred in refusing to grant Hope's application for post-conviction relief on this ground. 3 Hope is therefore [328 S.C. 81] entitled to a new trial on this charge. 4
II. Lesser Included Offense
The PCR judge found trial counsel ineffective in failing to request a jury charge on "entering without breaking," holding it is a lesser included offense of first degree burglary. The State argues this was error. We agree.
"The test for determining when a crime is a lesser included offense of the crime charged is whether the greater of the two offenses includes all the elements of the lesser offense. If the lesser offense includes an element not included in the greater offense, then the lesser offense is not included in the greater." State v. Bland, 318 S.C. 315, 317, 457 S.E.2d 611, 612 (1995) (internal citations omitted). First degree burglary is defined, in pertinent part, as entering "a dwelling without consent and with intent to commit a crime in the dwelling." S.C.Code Ann. § 16-11-311 (Supp.1996). "Entering without breaking" is defined, in pertinent part, as entering, without breaking, or attempting to enter any house or vessel, with intent to steal or commit any other crime. S.C.Code Ann. § 16-13-170 (1976). 5
The difference in elements between these two offenses is that under the former, it must be shown the entering was accomplished without consent, whereas under the latter, it [328 S.C. 82] must be shown the entering was accomplished...
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