S.E. 2d
THE STATE OF SOUTH CAROLINA
In The Supreme Court
Richard Campbell, Respondent,
v.
State of South Carolina, Petitioner.
ON WRIT OF CERTIORARI
Appeal From Aiken County
Frank Eppes, Trial Judge
Rodney A. Peeples, Post-Conviction Judge
Opinion No. 25183
Submitted May 24, 2000 - Filed August 14, 2000
AFFIRMED
Attorney General Charles M. Condon, Chief Deputy
Attorney General John W. McIntosh, Assistant Deputy
Attorney General Teresa A. Knox, and Assistant Attorney
General Matthew M. McGuire, all of Columbia, for petitioner.
Assistant Appellate Defender Melody J. Brown, of S.C.
Office of Appellate Defense, of Columbia, for respondent.
PER CURIAM: The State appeals the lower court's grant of post-conviction
relief (PCR) to respondent. We affirm in result.
p.495
Campbell v. State
FACTS
Respondent was indicted for first degree criminal sexual conduct with
a minor for allegedly fondling the seven-year-old daughter of his live-in
girlfriend. He pled guilty to committing a lewd act on a child under the age
of sixteen and was sentenced to fifteen years imprisonment. His subsequent
application for PCR was granted, based on a finding by the PCR court that
respondent's plea was involuntary.
ISSUE
Did the trial court have jurisdiction to accept respondent's plea?
DISCUSSION
Although the issue raised to this Court concerned the voluntariness of
respondent's plea, we affirm the PCR court's grant of relief to respondent
because the trial court did not have subject matter jurisdiction to accept
respondent's plea. Except for certain minor offenses, the circuit court does
not have subject matter jurisdiction to hear a guilty plea unless (1) there has
been an indictment which sufficiently states the offense; (2) there has been a
waiver of indictment; or (3) the charge is a lesser included charge of the
crime charged in the indictment. Carter v. State, 329 S.C. 355, 362, 495
S.E.2d 773, 777 (1998); S.C. Code Ann. 17-19-10 (1985). Lack of subject
matter jurisdiction may not be waived, and may be raised at any time,
including on this Court's own motion. See Anderson v. Anderson, 299 S.C.
110, 115, 382 S.E.2d 897, 900 (1989).
Here, the grand jury never indicted respondent for the lewd act charge
and respondent did not waive presentment to the grand jury. Committing a
lewd act on a minor is not a lesser included offense of first degree criminal
sexual conduct on a minor. State v. Norton, 286 S.C. 95, 332 S.E.2d 531
(1985); see also S.C. Code Ann. 16-3-655(1) and 16-15-140 (1976 & Supp.
1999). Therefore, the trial court was without jurisdiction to accept
respondent's plea to the unindicted charge.
p. 496
Campbell v. State
CONCLUSION
Prosecutors must be cautious to ensure that subject matter jurisdiction
is present when a defendant pleads to an unindicted offense. Finding no
subject matter jurisdiction in this case, we AFFIRM the PCR court's grant of
relief to respondent.
p.497