Hope v. State, No. 24695

CourtUnited States State Supreme Court of South Carolina
Writing for the CourtWALLER; FINNEY
Citation492 S.E.2d 76,328 S.C. 78
PartiesDerrick Kernard HOPE, Petitioner/Respondent, v. STATE of South Carolina, Respondent/Petitioner.
Docket NumberNo. 24695
Decision Date13 October 1997

Page 76

492 S.E.2d 76
328 S.C. 78
Derrick Kernard HOPE, Petitioner/Respondent,
v.
STATE of South Carolina, Respondent/Petitioner.
No. 24695.
Supreme Court of South Carolina.
Submitted Sept. 18, 1997.
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.

Page 78

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?

DISCUSSION

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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26 practice notes
  • Joseph v. State, No. 25539.
    • United States
    • United States State Supreme Court of South Carolina
    • October 14, 2002
    ...an element which is not included in the greater offense, then the lesser offense is not included in the greater offense. Hope v. State, 328 S.C. 78, 492 S.E.2d 76 Larceny involves the taking and carrying away of the goods of another, which must be accomplished against the will or without th......
  • State v. LaCoste, No. 3383.
    • United States
    • Court of Appeals of South Carolina
    • September 4, 2001
    ...an element which is not included in the greater offense, then the lesser offense is not included in the greater offense. Hope v. State, 328 S.C. 78, 81, 492 S.E.2d 76, 78 Criminal domestic violence is defined by S.C.Code Ann. § 16-25-20 (Supp.2000), which provides: It is unlawful to: (1) ca......
  • Audio Investments v. Robertson, No. 8:002847-20BG.
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • April 19, 2002
    ...other documents which have been issued by "Our One Supreme Court." We take this opportunity to reemphasize this point. Nash v. McIntosh, 492 S.E.2d at 76. The United States Attorney for the District of South Carolina has removed another civil action concerning Roger Davenport to federal cou......
  • State v. Northcutt, No. 26271.
    • United States
    • United States State Supreme Court of South Carolina
    • February 20, 2007
    ...offense of the crime charged is whether the greater of the two offenses includes all the elements of the lesser offense. Hope v. State, 328 S.C. 78, 492 S.E.2d 76 (1997). If the lesser offense includes an element not included in greater offense, then the lesser offense is not included in th......
  • Request a trial to view additional results
26 cases
  • Joseph v. State, No. 25539.
    • United States
    • United States State Supreme Court of South Carolina
    • October 14, 2002
    ...an element which is not included in the greater offense, then the lesser offense is not included in the greater offense. Hope v. State, 328 S.C. 78, 492 S.E.2d 76 Larceny involves the taking and carrying away of the goods of another, which must be accomplished against the will or without th......
  • State v. LaCoste, No. 3383.
    • United States
    • Court of Appeals of South Carolina
    • September 4, 2001
    ...an element which is not included in the greater offense, then the lesser offense is not included in the greater offense. Hope v. State, 328 S.C. 78, 81, 492 S.E.2d 76, 78 Criminal domestic violence is defined by S.C.Code Ann. § 16-25-20 (Supp.2000), which provides: It is unlawful to: (1) ca......
  • Audio Investments v. Robertson, No. 8:002847-20BG.
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • April 19, 2002
    ...other documents which have been issued by "Our One Supreme Court." We take this opportunity to reemphasize this point. Nash v. McIntosh, 492 S.E.2d at 76. The United States Attorney for the District of South Carolina has removed another civil action concerning Roger Davenport to federal cou......
  • State v. Northcutt, No. 26271.
    • United States
    • United States State Supreme Court of South Carolina
    • February 20, 2007
    ...offense of the crime charged is whether the greater of the two offenses includes all the elements of the lesser offense. Hope v. State, 328 S.C. 78, 492 S.E.2d 76 (1997). If the lesser offense includes an element not included in greater offense, then the lesser offense is not included in th......
  • Request a trial to view additional results

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