THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Bernard Lambright,        Appellant,

v.

Rodney A. Peeples, Robert J. Harte, and Charles M. Condon,        Respondents.

Appeal From Aiken County
James C. Williams, Jr., Circuit Court Judge

Opinion No. 2003-UP-64
Submitted November 20, 2002 - Filed January 22, 2003��

AFFIRMED

Bernard Lambright, pro se

Attorney General Henry D. McMaster, Assistant Deputy Attorney General Donald J. Zelenka, and Assistant Deputy Attorney General Allen Bullard, all of Columbia, for Respondents

PER CURIAM:� Bernard Lambright appeals the denial of his petition for writ of mandamus.� Lambright petitioned the trial court to dismiss his burglary indictment because it did not state the offense with sufficient certainty and particularity.�

Lambright was tried by a jury and convicted of first degree criminal sexual conduct and burglary.� The trial court sentenced Lambright to life imprisonment on the burglary conviction and thirty years concurrent on the CSC conviction, suspended upon serving twenty years with five years probation.� Subsequently, Lambright�s conviction for CSC was reversed and remanded for a new trial.� The Supreme Court affirmed Lambright�s burglary conviction. �State v. Lambright, 279 S.C. 535, 309 S.E.2d 7 (1983).� On remand, the State elected to nol pros the CSC charge against Lambright.

DISCUSSION

The State�s decision to nol pros Lambright�s CSC charge is the impetus behind his petition for writ of mandamus to direct the court to dismiss his burglary indictment. [1] � In the petition, Lambright argued the State�s dismissal of the CSC charge �continue[s] [Lambright�s] imprisonment on an indictment that fails to specify the object of the burglary.�� Lambright contended the burglary indictment does not state the offense with sufficient certainty and particularity.�

The trial court denied Lambright�s petition, finding the dismissal of the CSC charge did not impact the burglary conviction.

Lambright appeals from the trial court�s denial of his petition for writ of mandamus.� Lambright argues a burglary indictment containing an allegation of intent to commit an unspecified felony is insufficient to continue his imprisonment.

Ordinarily, a writ of mandamus may not be used as a substitute for appeal.� United States v. 91.69 Acres of Land, 334 F.2d 229 (4th Cir. 1964).� A writ of mandamus is used primarily to enforce an established right and to enforce a corresponding imperative duty created or imposed by law.� Riverwoods, LLC v. County of Charleston, 349 S.C. 378, 563 S.E.2d 651 (2002).� To obtain the writ requiring the performance of an act, the petitioner must show:� (1) a duty of respondent to perform the act; (2) the ministerial nature of the act; (3) the petitioner�s specific legal right for which discharge of the duty is necessary; and (4) a lack of any other legal remedy.� Id.� If the petitioner�s legal right is doubtful a writ of mandamus cannot rightfully issue.� Id.���

Lambright�s petition for writ of mandamus challenges the sufficiency of his burglary indictment.� As such, Lambright�s argument challenges the trial court�s subject matter jurisdiction to try Lambright for burglary.� Questions regarding subject matter jurisdiction may be raised at any time.� Carter v. State, 329 S.C. 355, 495 S.E.2d 773 (1998).�

�The trial court has subject matter jurisdiction if there has been an indictment sufficiently stating the offense.� Locke v. State, 341 S.C. 54, 533 S.E.2d 324 (2000).� 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.� Granger v. State, 333 S.C. 2, 507 S.E.2d 322 (1998); see Garrett v. State, 320 S.C. 353, 465 S.E.2d 350 (1995) (stating an indictment is adequate if the offense is stated 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); Browning v. State, 320 S.C. 366, 368, 465 S.E.2d 358, 359 (1995) (�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.�).

Lambright was indicted in October 1981 for committing the common law offense of burglary.� Under the common law, burglary consisted of the breaking and entering of a dwelling house of another in the nighttime, with the intent to commit a felony.� State v. Clamp, 225 S.C. 89, 80 S.E.2d 918 (1954).� A review of Lambright�s burglary indictment shows this offense was stated with sufficient certainty and particularity to vest the trial court with subject matter jurisdiction.

Furthermore, Lambright�s argument that the burglary indictment is insufficient because it contained an allegation of his intent to commit an unspecified felony has been foreclosed by State v. Adams, 277 S.C. 115, 283 S.E.2d 582 (1981).

In Adams, the defendant argued his housebreaking indictment was fatally defective because it failed to allege the particular crime intended.� The indictment stated, in part, that the defendant �did . . . break and enter the house . . . with intent to commit a crime therein.�� Id. at 124-25, 283 S.E.2d at 587.� The Court held the indictment was sufficient given there was no indication the defendant was unfairly prejudiced since the defendant had been indicted for the crimes accompanying the housebreaking.� See also State v. Brooks, 277 S.C. 111, 283 S.E.2d 830 (1981) (holding a common law burglary indictment is sufficient if it charges one with breaking and entering the dwelling of another in the nighttime with intent to commit any crime, whether it be a felony or misdemeanor).� There is no requirement in the law that the felony or crime intended by the defendant be alleged in a burglary indictment.

In the present case, Lambright was indicted for CSC in addition to the burglary charge.� There is no evidence Lambright was not informed of the CSC charge or that Lambright was not prepared to defend the CSC charge in relation to the burglary charge.� Thus, the original trial court had subject matter jurisdiction and the circuit court did not err in denying Lambright�s petition for writ of mandamus given there is no specific legal right entitling Lambright to release from imprisonment.

CONCLUSION

Based on the foregoing analysis, the trial court�s decision to deny Lambright�s petition for writ of mandamus is

AFFIRMED.

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