State v. Guthrie

• Decision Date: 28 October 2002
• Docket Number: No. 3560.,3560.
• Citation: 572 S.E.2d 309,352 S.C. 103
• Parties: The STATE, Respondent, v. Brent P. GUTHRIE, Appellant.
• Court: South Carolina Court of Appeals

352 S.C. 103

572 S.E.2d 309

The STATE, Respondent, v. Brent P. GUTHRIE, Appellant.

No. 3560.

Court of Appeals of South Carolina.

Heard September 11, 2002.

Decided October 28, 2002.

Deputy Chief Attorney Joseph L. Savitz, III, of South Carolina Office of Appellate Defense, of Columbia, for appellant.

Attorney General Charles M. Condon, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Charles H. Richardson, Senior Assistant Attorney General Harold M. Coombs, Jr., all of Columbia; and Solicitor Druanne D. White, of Anderson, for respondent.

ANDERSON, J.:

Brent P. Guthrie was convicted of first degree burglary. On appeal, he contends the trial court lacked subject matter jurisdiction because the State improperly amended his indictment at trial. We reverse.

FACTS/PROCEDURAL BACKGROUND

Guthrie, Mark Velt, and Jerry Lambert broke into Ed Tannery's fishing cabin during the evening sometime between January 13 and January 15, 1999. The three men removed beer, a tackle box, fishing rods, and several other items from the cabin. They filled their truck with these items, deposited them in Velt's hotel room, and returned to the cabin a second time to extricate more items. All three men were charged with the crime.

Guthrie was indicted for first degree burglary based on the aggravating factor of unlawfully entering the dwelling during the nighttime hours. At the beginning of Guthrie's trial, the State moved to amend the indictment to include as an additional aggravating factor Guthrie's conviction of two or more prior burglaries. Guthrie objected to the amendment and argued the presentation of his six prior burglaries would be prejudicial to his defense. The Circuit Court found Guthrie would not suffer any prejudice and allowed the amendment. Although the Circuit Court granted the amendment, it does not appear from the record that the actual indictment was altered to include the additional aggravating factor.

The State later submitted evidence of Guthrie's six prior burglary convictions. The Circuit Court instructed the jury that they were not to consider the prior convictions as proof of guilt in the present case, but that it was evidence that would satisfy an element of first degree burglary.

Velt testified at trial regarding Guthrie's participation in the burglary. The jury found Guthrie guilty of first degree burglary. The foreman signed the verdict form on the back of the original indictment, which charged the element of entering in the nighttime.

LAW/ANALYSIS

Guthrie maintains the Circuit Court lacked subject matter jurisdiction because the amendment to the indictment added an additional element of aggravation that was not presented to the grand jury. We agree.

I. Subject Matter Jurisdiction

The jurisdiction of a court over the subject matter of a proceeding is fundamental. Brown v. State, 343 S.C. 342, 540 S.E.2d 846 (2001). The Circuit Court does not have subject matter jurisdiction to convict a defendant of an offense unless: (1) there has been an indictment which sufficiently states the offense; (2) the defendant has waived presentment of the indictment; or (3) the offense is a lesser included offense of the crime charged in the indictment. State v. Primus, 349 S.C. 576, 564 S.E.2d 103 (2002); State v. Timmons, 349 S.C. 389, 563 S.E.2d 657 (2002); State v. Lynch, 344 S.C. 635, 545 S.E.2d 511 (2001).

The lack of subject matter jurisdiction can be raised at any time, can be raised for the first time on appeal, and can be raised sua sponte by the court. State v. Brown, 351 S.C. 522, 570 S.E.2d 559 (2002); see also State v. Ervin, 333 S.C. 351, 510 S.E.2d 220 (Ct.App.1998)

(holding issues related to subject matter jurisdiction may be raised at any time). Furthermore, lack of subject matter jurisdiction may not be waived, even by consent of the parties, and should be taken notice of by this Court. Brown, 343 S.C. at 346,

540 S.E.2d at 848. The acts of a court with respect to a matter as to which it has no jurisdiction are void. Id. at 346, 540 S.E.2d at 849; State v. Funderburk, 259 S.C. 256, 191 S.E.2d 520 (1972).

II. Sufficiency of the Indictment

In South Carolina, an indictment "shall be deemed and judged sufficient and good in law which, in addition to allegations as to time and place, as required by law, charges the crime substantially in the language of the common law or of the statute prohibiting the crime or so plainly that the nature of the offense charged may be easily understood and, if the offense be a statutory offense, that the offense be alleged to be contrary to the statute in such case made and provided." S.C.Code Ann. § 17-19-20 (1985). Thus, an indictment passes legal muster if it charges the crime substantially in the language of the statute prohibiting the crime or so plainly that the nature of the offense charged may be easily understood. State v. Reddick, 348 S.C. 631, 560 S.E.2d 441 (Ct.App.2002). The indictment must state the offense with sufficient certainty and particularity to enable the court to know what judgment to pronounce, and the defendant to know what he is called upon to answer, and whether he may plead an acquittal or conviction thereon. Browning v. State, 320 S.C. 366, 465 S.E.2d 358 (1995); State v. Hamilton, 344 S.C. 344, 543 S.E.2d 586 (Ct.App.2001); State v. Ervin, 333 S.C. 351, 510 S.E.2d 220 (Ct.App.1998). The true test of the sufficiency of an indictment is not whether it could be made more definite and certain, but whether it contains the necessary elements of the offense intended to be charged and sufficiently apprises the defendant of what he must be prepared to meet. Browning, 320 S.C. at 368,465 S.E.2d at 359; Reddick, 348 S.C. at 635,560 S.E.2d at 443. An indictment phrased substantially in the language of the statute which creates and defines the offense is ordinarily sufficient. State v. Shoemaker, 276 S.C. 86, 275 S.E.2d 878 (1981).

An indictment is sufficient to convey jurisdiction if it apprises the defendant of the elements of the offense intended to be charged and informs the defendant of the circumstances he must be prepared to defend. Locke v. State, 341 S.C. 54, 533 S.E.2d 324 (2000); Carter v. State, 329 S.C. 355, 495 S.E.2d 773 (1998); Hamilton, 344 S.C. at 364, 543 S.E.2d at 597. Generally, an indictment is required to perform two functions: (1) it should inform the accused of the charge against him by listing the elements of the offense charged; and (2) it should be sufficiently specific to protect the accused against double jeopardy. State v. Bullard, 348 S.C. 611, 560 S.E.2d 436 (Ct.App.2002).

South Carolina courts have held that the sufficiency of an indictment must be viewed with a practical eye. State v. Adams, 277 S.C. 115, 283 S.E.2d 582 (1981), overruled on other grounds by State v. Torrence, 305 S.C. 45, 406 S.E.2d 315 (1991)

. All the surrounding circumstances must be weighed before an accurate determination of whether a defendant was or was not prejudiced can be reached. Id.

III. Amendment of Indictment

South Carolina Code Ann. section 17-19-100 (1985), states in pertinent part:

If (a) there be any defect in form in any indictments or (b) on the trial of any case there shall appear to be any variance between the allegations of the indictment and the evidence offered in proof thereof, the court before which the trial shall be had may amend the indictment (according to the proof, if the amendment be because of a variance) if such amendment does not change the nature of the offense charged.

An indictment may be amended provided such amendment does not change the nature of the offense charged. State v. Lynch, 344 S.C. 635, 545 S.E.2d 511 (2001); see also Granger v. State, 333 S.C. 2, 507 S.E.2d 322 (1998)

(finding that, under § 17-19-100, an indictment may be amended at trial only if amendment does not change nature of offense charged). For example, an amendment which changes an offense to one with increased punishment deprives the Circuit Court of subject matter jurisdiction. Lynch, 344 S.C. at 639,

545 S.E.2d at 513; Hopkins v. State, 317 S.C. 7, 451 S.E.2d 389 (1994); State v. Riddle, 301 S.C. 211, 391 S.E.2d 253 (1990). However, an amendment may deprive the Circuit Court of jurisdiction even if it does not change the penalty. See Lynch, 344 S.C. at 639,

545 S.E.2d at 514; Weinhauer v. State, 334 S.C. 327, 513 S.E.2d 840 (1999).

Amendments to an indictment are permissible if: 1) they do not change the nature of the offense; 2) the charge is a lesser included offense of the crime charged on the indictment; or 3) the defendant waives presentment to the grand jury and pleads guilty. State v. Myers, 313 S.C. 391, 438 S.E.2d 236 (1993).

IV. Efficacy of Amendment

Guthrie asserts the trial court erred in allowing the State to amend his indictment at trial by adding the additional aggravating factor and, therefore, the court lacked subject matter jurisdiction over his case. We agree.

South Carolina Code Ann. section 16-11-311(A) (Supp.2001) provides:

(A) A person is guilty of burglary in the first degree if the person enters a dwelling without consent and with intent to commit a crime in the dwelling, and either:

(1) when, in effecting entry or while in the dwelling or in immediate flight, he or another participant in the crime:

(a) is armed with a deadly weapon or explosive; or

(b) causes physical injury to a person who is not a participant in the crime; or

(c) uses or threatens the use of a dangerous instrument; or

(d) displays what is or appears to be a knife, pistol, revolver, rifle, shotgun, machine gun, or other firearm; or

(2) the burglary is committed by a person with a prior record of two or more convictions for burglary or housebreaking or a combination of both; or

(3) the entering or remaining occurs in the nighttime.

The relevant aggravating factors in the present case involve: "(2) the burglary is committed by a person with a prior record of two or more convictions for...