THE STATE OF SOUTH CAROLINA
In The Court of Appeals

The State,        Respondent,

v.

James Scott,        Appellant.

Appeal From Aiken County
William P. Keesley, Circuit Court Judge

Unpublished Opinion No. 2003-UP-037
Submitted November 20, 2002 � Filed January 15, 2003

REMANDED

Chief Appellate Defender Daniel T. Stacey, of Columbia, for appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Attorney General W. Rutledge Martin, all of Columbia; and Solicitor Barbara R. Morgan, of Aiken, for respondent.

PER CURIAM:� In 1998, James Scott pled guilty to criminal sexual conduct with a minor in the second degree and was sentenced to ten years imprisonment suspended on the service of five years probation.� He also pled guilty to possession of crack cocaine and was sentenced to five years imprisonment.� In 2002, Scott pled guilty to failure to register as a sex offender and violation of community supervision.� He was sentenced to ninety days imprisonment for failing to register and had one year of his probation revoked for violating community supervision.

Scott appeals arguing the trial court lacked subject matter jurisdiction over the underlying offenses from 1998 upon which his alleged 2002 violations were premised.� We remand for an evidentiary hearing pursuant to State v. Grim, 341 S.C. 63, 66, 533 S.E.2d 329, 330 (2000).

DISCUSSION

Scott asserts the trial court did not have subject matter jurisdiction to accept his guilty pleas with respect to both charges from 1998 because the indictments do not indicate what action, if any, was taken by the grand jury. [1]

Because of its fundamental nature, the issue of a defect in subject matter jurisdiction may be raised at any time including when raised for the first time on appeal to this Court.� Brown v. State, 343 S.C. 342, 346, 540 S.E.2d 846, 848-49� (2001).� Furthermore, this Court must, on its own motion, raise the issue of subject matter jurisdiction to ensure the �orderly administration of justice.�� State v. Castleman, 219 S.C. 136, 139, 64 S.E.2d 250, 252 (1951).

A court without subject matter jurisdiction may not properly act and any action taken by that court is void and without legal effect.� Brown, 343 S.C. at 346, 540 S.E.2d. at 849; State v. Funderburk, 259 S.C. 256, 261, 191 S.E.2d 520, 522 (1972).� The subject matter jurisdiction of a court �is determined by the Constitution, the laws of the state, and is fundamental.�� Anderson v. Anderson, 299 S.C. 110, 115, 382 S.E.2d 897, 900 (1989).

�[N]o person may be held to answer for any crime . . . unless on a presentment or indictment of a grand jury . . . .� The General Assembly may provide for the waiver of an indictment by the accused.�� S.C. Const. art. I, � 11; see also S.C. Code Ann. � 17-23-130 (Supp. 2001) (providing for the waiver of presentment of indictments).� Our supreme court has held that �in the absence of an indictment by the grand jury . . . or a valid waiver of presentment of indictment, the circuit court lacks subject matter jurisdiction over the offense.�� State v. Evans, 307 S.C. 477, 479, 415 S.E.2d 816, 817 (1992); see also Grim, 341 S.C. at 66, 533 S.E.2d at 330 (holding �a circuit court does not have subject matter jurisdiction to hear a guilty plea unless the defendant has been indicted by a grand jury or has waived presentment�).

Moreover, where a question exists regarding whether an indictment was true-billed or a valid waiver was executed, this Court should remand the case to the circuit court to �conduct an evidentiary hearing to determine whether the indictment was true-billed; or resubmit the indictment for grand jury reconsideration; or effect a waiver of presentment of the indictment to the grand jury and, again, entertain the defendant�s plea; or simply allow withdrawal of the plea and proceed anew.�� Id. at 67, 533 S.E.2d at 330.

In the present case, Scott argues, the State concedes, and the record evidences, neither indictment was properly stamped �true-billed,� and Scott never affected a waiver of presentment.

CONCLUSION

Therefore, this case is remanded for a hearing to determine whether the absence of the words �true bill� from the face of the indictments was a mere scrivener�s error.� On remand, if the State cannot prove the circuit court was properly vested with subject matter jurisdiction, the circuit court is ordered to vacate Scott�s conviction.� See id.

REMANDED. ^[2]

CONNOR, STILWELL, and HOWARD, JJ., concur.