Jones v. State
| Decision Date | 11 November 2004 |
| Docket Number | 2004-MO-060 |
| Parties | Jimmy Dean Jones, Petitioner, v. State of South Carolina, Respondent. |
| Court | South Carolina Supreme Court |
THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.
Submitted October 20, 2004.
ON WRIT OF CERTIORARI
Appeal From Spartanburg County Donald W. Beatty, Plea Judge J Derham Cole, Post-Conviction Relief Judge
Assistant Appellate Defender Aileen P. Claire, of the South Carolina Office of Appellate Defense, for Petitioner.
Attorney General Henry D. McMaster, Chief Deputy Attorney General John W. McIntosh, and Assistant Attorney General Douglas E. Leadbitter, of the Office of the Attorney General, for Respondent.
Petitioner seeks a writ of certiorari from the denial of his application for post-conviction relief (PCR). We grant the petition dispense with further briefing, and vacate petitioner's guilty plea to accessory after the fact to burglary second (accessory after the fact).
Petitioner pled guilty to accessory after the fact and was sentenced to a term of imprisonment of five years provided that upon service of two years the balance was suspended with probation for three years. No direct appeal was taken. Petitioner's PCR application was dismissed following an evidentiary hearing. He now, for the first time on appeal, contends the circuit court did not have subject matter jurisdiction to accept his guilty plea because he was indicted for second degree burglary and accessory after the fact is not a lesser included offense of second degree burglary. We agree.
Lack of subject matter jurisdiction can be raised at any time, including for the first time on appeal to this Court. State v. Funderburk, 259 S.C. 256, 191 S.E.2d 520 (1972). A circuit court has subject matter jurisdiction if there has been an indictment that sufficiently states the offense, there has been a waiver of indictment, or the charge is a lesser included offense of the crime charged in the indictment. Locke v. State, 341 S.C. 54, 533 S.E.2d 324 (2000). The test for determining if a crime is a lesser included offense is whether the greater of the two offenses includes all the elements of the lesser offense. Knox v. State, 340 S.C. 81, 530 S.E.2d 887 (2000).
Petitioner's indictment for second degree burglary stated petitioner did in Spartanburg County on or about July 14, 1998...
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