State v. Barrs ( 2004 )

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.

Gilbert Cecil Barrs, Appellant.

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Appeal From Lexington County
Marc H. Westbrook, Circuit Court Judge

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Unpublished Opinion No. 2004-UP-623
Submitted December 1, 2004 – Filed December 10, 2004

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VACATED

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Assistant Appellate Defender Eleanor Duffy Cleary, of Columbia, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Assistant Attorney General Deborah R.J. Shupe, all of Columbia; and Solicitor Donald V. Myers, of Lexington, for Respondent.

PER CURIAM:  Gilbert Cecil Barrs appeals his Alford [1] plea to committing a lewd act on a minor, arguing the circuit court lacked subject matter jurisdiction to accept his plea because he did not waive presentment to the grand jury.  We agree and vacate his conviction and sentence. [2]

FACTS AND PROCEDURAL HISTORY

Barrs was indicted on three counts of first-degree criminal sexual conduct with a minor for allegedly molesting the daughter of a couple he was living with.  Pursuant to a plea agreement with the State, he entered an Alford plea to committing a lewd act on a minor and the State nol prossed the remaining CSC indictments.  The trial judge sentenced him to ninety days, with credit for time served while awaiting trial. 

DISCUSSION           

Except for certain minor offenses, the circuit court does not have subject matter jurisdiction to hear a guilty plea unless there has been an indictment, a waiver of presentment to the grand jury, or unless the charge is a lesser-included offense of the crime charged in the indictment.  Hopkins v. State, 317 S.C. 7, 9, 451 S.E.2d 389, 390 (1994); see also Odom v. State, 350 S.C. 300, 302, 566 S.E.2d 528, 529 (2002) (“In the absence of an indictment, there must be a valid waiver of presentment for the trial court to have subject matter jurisdiction of the offense.”); S.C. Code Ann. § 17-19-10 (2003).  Lack of subject matter jurisdiction may not be waived, and may be raised at any time, including on the court’s own motion.  Campbell v. State, 342 S.C. 100, 101-02, 535 S.E.2d 928, 929 (2000).

The grand jury never indicted Barrs for the lewd act charge and Barrs did not waive presentment to the grand jury.  Committing a lewd act on a minor is not a lesser-included offense of first-degree criminal sexual conduct on a minor. Id.; see also S.C. Code Ann. §§ 16-3-655(1) and 16-15-140 (2003). Therefore, the trial court was without jurisdiction to accept Barrs’ plea to the unindicted charge. 

VACATED.

ANDERSON, STILWELL, and SHORT, JJ., concur.

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[1]         North Carolina v. Alford, 400 U.S. 25 (1970).

[2]         We decide this case without oral argument pursuant to Rule 215, SCACR.