THE STATE OF SOUTH CAROLINA
In The Supreme Court
Raymond Weinhauer, Petitioner,
State of South Carolina, Respondent.
Appeal From Sumter County
David F. McInnis, Circuit Court Judge
Thomas W. Cooper, Jr., Post-Conviction Judge
Opinion No. 24909
Submitted January 21, 1999 - Filed March 1, 1999
Assistant Appellate Defender M. Anne Pearce, of South
Carolina Office of Appellate Defense, of Columbia, for
Attorney General Charles Molony Condon; Deputy Attorney
General John W. McIntosh; and Assistant Deputy Attorney
General Teresa A. Knox, all of Columbia; Assistant Attorney
General Barbara M. Tiffin, of Greenville, for respondent.
TOAL, A.C.J.: In this application for post-conviction relief ("PCR"), the
PCR court dismissed petitioner's case. We reverse.
WEINHAUER v. STATE
On January 4, 1994, a Sumter County grand jury indicted petitioner
Raymond Weinhauer, Jr., for numerous criminal offenses including first and
second degree burglary. On January 28, 1994, petitioner pleaded guilty to
several counts in the indictment including two counts of second degree burglary.
Count six of the indictment, as presented to the grand jury, stated:
Burglary -- First Degree -- That one RAYMOND WARREN
WEINHAUER, JR. did in Sumter County on or about October 26,
1992, wilfully and unlawfully enter the dwelling of Scott Stone
without consent and with intent to commit a crime therein, and the
defendant entered or remained therein in the nighttime.
Count eight of the indictment stated:
Burglary -- Second Degree -- That one CHARLES ANTHONY
OWENS and one RAYMOND WARREN WEINHAUER, JR. did in
Sumter County between November 13 and November 16, 1992,
wilfully and unlawfully enter the dwelling of James S. Cofer at
Huntington Place Apartments without consent and with intent to
commit a crime therein.
At the guilty plea proceeding, the solicitor orally amended the indictment,
stating: "On the indictment on count six, it says burglary first degree. My
investigation of the facts determined that that is not in fact a burglary first
degree. It is a burglary second degree. It is a house in the daytime and he is
pleading to a nonviolent on that. Count eight does not say it is a nighttime
burglary but it is, and he is pleading guilty to a nighttime burglary on that as
a violent crime." Petitioner's attorney made no objection. Petitioner did not
On July 18, 1994, petitioner filed an application for PCR. Following an
evidentiary hearing, the PCR court dismissed petitioner's application. In
February 1997, petitioner sought from this Court a writ of certiorari to consider
the following issue:
Whether the trial judge lacked subject matter jurisdiction to convict
and sentence petitioner for second degree burglary, violent, where
WEINHAUER v. STATE
the indictment failed to state an aggravating circumstance under
S.C. Code Ann. § 16-11-312(B)(Supp. 1997)?1
Petitioner argues that the trial court lacked subject matter jurisdiction to
convict and sentence him for second degree burglary, violent, where the
elements of such offense were not included in count eight of the indictment to
the grand jury. We agree.
The offense of second degree burglary is codified at S.C. Code Ann. §
16-11-312 (Supp. 1998), which provides two definitions of the offense,
subsections (A) and (B). Subsection (A) defines second degree burglary as
entering a dwelling2 without consent and with intent to commit a crime therein.
S.C. Code Ann. § 16-11-312(A). Under subsection (B), a person is also guilty of
second degree burglary if he enters a building3 without consent and with intent
to commit a crime therein, and where the burglary involves one of several
enumerated aggravating circumstances, one of which is "nighttime" burglary.
S.C. Code Ann. § 16-11-312(B).
1 Although this issue was not raised to the PCR court, we may consider
it on appeal since matters of subject matter jurisdiction may be raised at any
time. Carter v. State, 329 S.C. 355, 495 S.E.2d 773 (1998); Hope v. State, 328
S.C. 78, 492 S.E.2d 76 (1997).
2 "'Dwelling' means its definition found in § 16-11-10 and also means the
living quarters of a building which is used or normally used for sleeping, living,
or lodging by a person." S.C. Code Ann. § 16-11-310(2) (Supp. 1998).
3 S.C. Code Ann. § 16-11-310(l) (Supp. 1998) defines "Building" in the
"Building" means any structure, vehicle, watercraft, or aircraft:
(a) Where any person lodges or lives; or
(b) Where people assemble for purposes of business, government,
education, religion, entertainment, public transportation, or public
use or where goods are stored. Where a building consists of two or
more units separately occupied or secured, each unit is deemed
both a separate building in itself and a part of the main building.
WEINHAUER v. STATE
Second degree burglary, as defined in subsection (B), is specifically listed
as a violent offense under S.C. Code Ann. § 16-1-60 (Supp. 1998). Conversely,
second degree burglary under subsection (A) is classified as a nonviolent
offense. See S.C. Code Ann. § 16-1-70 (Supp. 1998). Petitioner argues that
when the solicitor orally amended count eight of the indictment, she changed
the nature of the offense by including the aggravating circumstance of
"nighttime" burglary. This, in turn, changed the classification of the offense
from the nonviolent form of second degree burglary to the violent form, i.e.,
second degree burglary as defined under subsection (B). Petitioner further
notes that by changing the offense from nonviolent to violent, he will have to
serve one-third of his sentence before being eligible for parole, as opposed to
one-fourth of the sentence under the nonviolent form.4
Pursuant to S.C. Code Ann. § 17-19-100 (1985), "If (a) there be any defect
in form in any indictments or (b) on the trial of any case there shall appear to
be any variance between the allegations of the indictment and the evidence
offered in proof thereof, the court before which the trial shall be had may amend
the indictment (according to the proof, if the amendment be because of a
variance) if such amendment does not change the nature of the offense charged."
(emphasis added). Thus, the question presented on this appeal is whether the
amendment changed the nature of the offense charged.
In State v. Sowell, 85 S.C. 278, 67 S.E. 216 (1910), the defendant was
indicted under section 145 of the South Carolina Criminal Code of 1902, which
Every person who shall break and enter, or who shall break with
intent to enter, in the daytime, any dwelling house or other house,
4 S. C. Code Ann. § 16-11-312(C) provides that burglary under either
subsection (A) or (B) is punishable by imprisonment for not more than fifteen
years, provided that no person convicted of second degree burglary will be
eligible for parole until service of one-third of the sentence. However, under
S.C. Code Ann. § 24-21-610 (1989), for convictions of nonviolent crimes, an
inmate is eligible for parole after serving one-fourth of the sentence. In Hair v.
State, 305 S.C. 77, 406 S.E.2d 332 (1991), we held that since the Omnibus
Crime Bill was enacted after section 16-11-312, subsection (C) of 16-11-312 had
implicitly been repealed. Thus, a person guilty of the nonviolent form of second
degree burglary would have to only serve one-fourth of his sentence to be
eligible for parole, as opposed to the one-third for the violent form.
WEINHAUER v. STATE
or who shall break and enter, or who shall break with intent to
enter in the nighttime, any house, the breaking and entering of
which would not constitute a burglary, with intent to commit a
felony or other crime of a lesser grade, shall be guilty of a felony,
and punishable at the discretion of the court by imprisonment in
the county jail or penitentiary for a term not exceeding one year.
(emphasis added). In Sowell, the indictment stated that the offense had been
committed in the "daytime." At trial, the indictment was amended to state that
the offense was committed in the "nighttime." This Court noted that section
145 created two distinct and different offenses even though both belonged to the
same class of felonies and were punishable in the same way.5 The Court held
that the amendment was improper because it changed the nature of the offense
as originally charged in the indictment. Sowell, supra; see also State v. Sweat,
221 S.C. 270, 70 S.E.2d 234 (1952).
In the instant case, count eight of the indictment properly set out the
elements for second degree burglary under section 16-11-312(A) ("person enters
a dwelling without consent and with intent to commit a crime therein."). The
solicitor amended count eight to state that the offense was committed at
"nighttime." According to the solicitor, petitioner pleaded guilty to second
degree burglary, violent, as defined under section 16-11-312(B) ("person enters
a building without consent and with intent to commit a crime therein, and . . .
(3) the entering or remaining occurs in the nighttime.").
We hold that by amending the indictment, the solicitor changed the
nature of the offense charged because the circumstance of "nighttime" burglary
was material to charging Defendant with second degree burglary under
subsection (B). See Sowell, supra; 41 Am. Jur. 2d Indictments and Informations
§ 184 at 792 (1995)("An indictment is not invalid merely for omitting or
incorrectly stating the time or date of the alleged offense, if this information is
5 In State v. Bouknight, 55 S.C. 353, 33 S.E. 451 (1899), this Court held
that this section of the criminal code created the following two distinct and
different offenses: (1) It is made a felony to break and enter, or to break with
intent to enter, in the daytime, any house, whether it be a dwelling house or a
house of any other character, with intent to commit a felony, or other crime of
lesser grade; and (2) it is likewise made a felony to break and enter, or break
with intent to enter, in the nighttime, any house, except a dwelling house, or
house within the curtilage of the dwelling house.
WEINHAUER v. STATE
neither material to the charged conduct nor necessary for the preparation of a
defense."). Thus, the trial court did not have jurisdiction to accept petitioner's
guilty plea of second degree burglary under count eight, as amended. See
Murdock v. State, 308 S.C. 143) 417 S.E.2d 543 (1992)(the circuit court lacks
jurisdiction to accept a guilty plea based upon a defective indictment). This
would hold true regardless whether the amendment changed the penalty. See
Sowell, supra (holding that the indictment could not be amended to replace
"daytime" with "nighttime" even though the two offenses were punishable in the
same way); cf Clair v. State, 324 S.C. 144,478 S.E.2d 54 (1996)(holding that an
amendment that increases the penalty changes the nature of the offense).
Based on the foregoing, we REVERSE the decision of the PCR court.
MOORE, WALLER, and BURNETT, JJ., concur. FINNEY, C.J., not participating.