State v. Guthrie , 352 S.C. 103 ( 2002 )

STILWELL, J.

(dissenting):

Because I believe the trial court retained subject matter jurisdiction following the amendment of Guthrie’s burglary indictment, I respectfully dissent.

In Lynch, our supreme court held that by “changing the aggravating circumstance from entering during the darkness to causing physical injury, the amendment to the indictment ‘substituted an entirely different [offense] for the one charged.’ ” State v. Lynch, 344 S.C. 635, 640-41, 545 S.E.2d 511, 514 (2001) (quoting State v. Sowell, 85 S.C. 278, 284, 67 S.E. 316, 318 (1910)) (alteration in original). Thus the court held the substitution of one aggravating factor for another divested the trial court of subject matter jurisdiction. Unlike Lynch, the amendment here did not substitute one aggravating circumstance for another; it added an additional one.

Subject matter jurisdiction is the power of a court to “hear- and determine cases of the general class to which the proceedings in question belong.” Brown v. Evatt, 322 S.C. 189, 193, 470 S.E.2d 848, 850 (1996); Dove v. Gold Kist, Inc., 314 S.C. 235, 237-38, 442 S.E.2d 598, 600 (1994). While the amendment may have offended the law in some other particular, the only issue before us is subject matter jurisdiction. See Rule 208(b)(1)(B), SCACR (“Ordinarily, no point will be considered which is not set forth in the statement of the issues on appeal.”). In my view, because the aggravating circumstance passed upon by the grand jury remained in the indictment, the trial court retained subject matter jurisdiction and the addition of another aggravating factor did not divest the trial court of that jurisdiction. Cf. State v. White, 338 S.C. 56, 525 S.E.2d 261 (Ct.App.1999).