Clair v. State , 324 S.C. 144 ( 1996 )

MOORE, Justice:

We granted the State’s petition for a writ of certiorari to review the grant of post-conviction relief (PCR) in this case. We now affirm.

FACTS

Respondent was indicted for trafficking in cocaine weighing more than 100 grams and less than 200 grams. Before the jury was sworn, the solicitor moved to amend the indictment to an amount more than 200 grams and less than .400 grams. Defense counsel consented to the amendment based on his understanding that the amount did not change the nature of the charges against his client. Respondent was convicted and sentenced to twenty-five years without parole and fined $100,-000.

Respondent filed a direct appeal which he then withdrew. Thereafter, he filed this application for PCR. On motion for summary judgment, the PCR judge granted respondent relief on the ground the amendment of the indictment without presentment by the grand jury deprived the court of subject matter jurisdiction.

ISSUE

Did the amendment of the indictment change the nature of the offense?

DISCUSSION

Under S.C.Code Ann. § 17-19-100 (1985), an indictment may be amended, and the trial may proceed as if the amended indictment had been originally returned by the grand jury, if the amendment does not change the nature of the offense charged. The State contends the PCR judge erred in finding amendment of the indictment changed the nature of the offense since the amendment went only to the amount of cocaine which is not an element of trafficking.¹

In Hopkins v. State, 317 S.C. 7, 451 S.E.2d 389 (1994), we held an amendment that increases the penalty changes the nature of the offense and therefore deprives the court of subject matter jurisdiction. The amendment in this case changed the penalty involved since it increased the applicable fíne from $50,000 to $100,000. Accordingly, the order granting PCR is

AFFIRMED.

FINNEY, C J., and TOAL and WALLER, JJ., concur. BURNETT, A.J., dissenting in separate opinion.

1 . The State also relies on State v. Towery, 300 S.C. 86, 386 S.E.2d 462 (1989), in which this Court held a trafficking indictment that alleged no weight was sufficient. Towery, however, involved only the question whether the original indictment presented by the grand jury was sufficient to give the defendant notice of the charges against him. It did not address whether an amendment at trial of a true-billed indictment changed the nature of the charges for purposes of determining whether the court had subject matter jurisdiction.