State v. Johnston
Decision Date | 09 April 1997 |
Docket Number | No. 2684,2684 |
Citation | 327 S.C. 435,489 S.E.2d 228 |
Court | South Carolina Court of Appeals |
Parties | The STATE, Respondent, v. Karen L. JOHNSTON, Appellant. . Heard |
The court granted the appellant's petition for rehearing in this case. After hearing oral arguments, it is hereby ordered that Opinion No. 96-UP-229 is withdrawn and the attached opinion is substituted.
/s/ C. Tolbert Goolsby, Jr., J.
/s/ Thomas E. Huff, J.
/s/ William L. Howard, Sr., J.
Karen Johnston was convicted of simple possession of marijuana and conspiracy to possess marijuana with the intent to distribute. She received a ten year concurrent sentence on the conspiracy charge, which facially appears to exceed the maximum allowable sentence under the facts of this case. Johnston raises this issue for the first time on appeal, arguing the trial court exceeded its subject matter jurisdiction by rendering an illegal sentence. This case was originally affirmed in a Rule 220(b), SCACR, opinion. We granted Johnston's petition for rehearing, and after argument adhere to our original decision to affirm, but substitute this opinion.
The State concedes S.C.Code Ann. § 44-53-420 (Supp.1996) sets the maximum sentence at one-half the penalty for the substantive offense, or five years in this case. 1 However, the State maintains a sentence exceeding the maximum allowable statutory penalty does not raise a question of subject matter jurisdiction, and thus, is not preserved for appeal absent objection in the trial court. We agree with the State, and affirm.
Can the illegality of a sentence which exceeds the statutory maximum allowable be raised for the first time on direct appeal?
Johnston was sentenced immediately following her conviction by a jury for conspiracy to possess marijuana with the intent to distribute. The trial judge sentenced her to ten years. South Carolina Code Ann. § 44-53-420 provides a maximum sentence of one-half the penalty for the substantive offense. The substantive offense in this case, possession with the intent to distribute marijuana, carries a maximum penalty under S.C.Code Ann. § 44-53-370(b)(2) (Supp.1996) of ten years for a second offense. Therefore, the maximum allowable sentence for conspiracy is one-half of ten years, or five years.
The record does not reflect any objection to the sentence, either at the time rendered or on any motion to reconsider. Therefore, the only way it can be addressed by us on direct appeal is if it is jurisdictional. See State v. Funderburk, 259 S.C. 256, 191 S.E.2d 520 (1972) ( )
Subject matter jurisdiction may be raised at any time because it is the duty of the court to assure that it renders no decision in a matter when it has no authority to act. See State v. Castleman, 219 S.C. 136, 139, 64 S.E.2d 250, 252 (1951) (); American Agric. Chem. Co. v. Thomas, 206 S.C. 355, 362, 34 S.E.2d 592, 595 (1945) () This is true irrespective of the desires of the parties to the litigation. State v. Douglas, 245 S.C. 83, 138 S.E.2d 845 (1964); see Castleman, 219 S.C. at 138-39, 64 S.E.2d at 251 ()
However, once the court obtains subject matter jurisdiction then a sentence which exceeds the maximum allowable or is less than the minimum mandated is not a question of subject matter jurisdiction, but is properly described as a question of the judge's authority. State v. Bynes, 304 S.C. 62, 403 S.E.2d 126 (Ct.App.1991). This is so, even though a sentence exceeding the maximum allowed by statute raises a question of fundamental fairness. There are many instances when a claim involving fundamental rights is procedurally barred from review on direct appeal because it has not been raised at the trial level. See, e.g., Medlock v. One 1985 Jeep Cherokee VIN 1JCWB7828FT129001, 322 S.C. 127, 470 S.E.2d 373 (1996) ( ); State v. Williams, 321 S.C. 455, 469 S.E.2d 49 (1996) ( ); State v. Franklin, 318 S.C. 47, 456 S.E.2d 357 (1995) (, )cert. denied, 516 U.S. 856, 116 S.Ct. 160, 133 L.Ed.2d 103 (1995); Hoffman v. Powell, 298 S.C. 338, 380 S.E.2d 821 (1989) ( ); Merriman v. Minter, 298 S.C. 110, 378 S.E.2d 441 (1989) ( ); State v. McKinney, 278 S.C. 107, 292 S.E.2d 598 (1982) (...
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