THIS OPINION HAS NO PRECEDENTIAL VALUE.� IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.
THE STATE OF SOUTH CAROLINA
In The Court of Appeals
The State, Respondent,
v.
Richard Fletcher, Appellant.
Appeal From Richland County
G. Thomas Cooper, Jr., Circuit Court
Judge
Unpublished Opinion No. 2004-UP-164
Submitted January 29, 2004 � Filed March 15, 2004
VACATED
Assistant Appellate Defender Robert M. Pachak, Office of Appellate Defense, of Columbia, for Appellant.
Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Senior Assistant Attorney General Harold M. Coombs, Jr.;� and Solicitor Warren Blair Giese, all of Columbia, for Respondent.
PER CURIAM: Richard Fletcher was indicted for second-degree lynching.� Fletcher pled guilty to assault and battery of a high and aggravated nature as a lesser-included offense of lynching and was sentenced to five years imprisonment, suspended on the service of three years probation.� Fletcher appeals, arguing the circuit court lacked subject matter jurisdiction to accept his plea to assault and battery of a high and aggravated nature because it is not a lesser-included offense of lynching.
FACTUAL/PROCEDURAL BACKGROUND
A grand jury indicted Fletcher for second-degree lynching.��� Subsequently, Fletcher pled guilty to assault and battery of a high and aggravated nature (�ABHAN�). �Fletcher appeals.
LAW/ANALYSIS
Fletcher argues ABHAN is not a lesser-included offense of lynching, and thus, the circuit court lacked subject matter jurisdiction to accept his plea.� We agree.
�The lack of subject matter jurisdiction over a criminal case 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. Guthrie, 352 S.C. 103, 107, 572 S.E.2d 309, 311 (Ct. App. 2002).� A circuit court lacks subject matter jurisdiction to accept a guilty plea unless: 1) there is an indictment that sufficiently states the offense; 2) the defendant has waived presentment of the indictment; or 3) the plea is to a lesser-included offense of the crime charged in the indictment.� Knox v. State, 340 S.C. 81, 84, 530 S.E.2d 887, 888 (2000).� �The test for determining when a crime is a lesser included offense is whether the greater of the two offenses includes all the elements of the lesser offense.�� Id.��
In Knox v. State, although the defendant was indicted for second-degree lynching, he pled guilty to ABHAN as a lesser-included offense of second-degree lynching.� Our supreme court determined that because all of the elements of ABHAN are not included in the offense of second-degree lynching, ABHAN is not a lesser-included offense of that crime.� Id. at 84-85, 530 S.E.2d at 888-889.
Here, a grand jury indicted Fletcher for second-degree lynching.� Subsequently, as in Knox, Fletcher pled guilty to ABHAN. �At the plea hearing, the circuit court accepted Fletcher�s guilty plea to ABHAN as a lesser-included offense of lynching.� However, �ABHAN is not a lesser-included offense [of lynching].�� Id. at 85, 530 S.E.2d at 889.� Furthermore, Fletcher did not waive presentment of an indictment for ABHAN.
Because Fletcher was not indicted for ABHAN, he did not waive presentment of an indictment for ABHAN, and ABHAN is not a lesser-included offense of second-degree lynching, the circuit court lacked subject matter jurisdiction to accept Fletcher�s guilty plea.� See Id.
CONCLUSION
For the foregoing reasons, Fletcher�s conviction is
VACATED.�
GOOLSBY, HOWARD and KITTREDGE, JJ., concurring.