THE STATE OF SOUTH CAROLINA
In The Court of Appeals
The State, Respondent,
Robert Rowe, Appellant.
Appeal From Richland County
Clifton Newman, Circuit Court Judge
Unpublished Opinion No. 2003-UP-392
Submitted April 18, 2003 – Filed June 12, 2003
Chief Attorney Daniel T. Stacey, of Columbia; for Appellant.
Attorney General Henry Dargan McMaster; Chief Deputy Attorney General John W. McIntosh; Assistant Deputy Attorney Charles H. Richardson; Senior Assistant Attorney General Harold W. Coombs, of Columbia; Warren Blair Giese, of Columbia; for Respondent.
PER CURIAM: Robert Rowe (Rowe) appeals from his guilty plea to strong arm robbery. Rowe contends the circuit court did not have subject matter jurisdiction to accept his plea because the indictment returned against him was for attempted armed robbery.
On November 3, 2000, Rowe and two co-defendants (Duncan and Reed) spotted a homeless man (Tabor) on the sidewalk as they were traveling in their car. Reed informed Rowe and Duncan he intended to rob Tabor. Subsequently, Reed, armed with a gun, got out of the car and attempted to rob Tabor. Tabor did not even have a wallet or any cash on his person. Rowe exited the car with Reed and Duncan but said nothing during the attempted robbery. The extent of Rowe’s involvement was limited to his presence at the crime scene.
The police arrested all three boys. Rowe cooperated with the police. Rowe was indicted for attempted armed robbery (01-GS-40-57431). During his guilty plea the State acknowledged they reduced the sentence to attempted strong arm robbery and dismissed other charges. (emphasis added) The State also acknowledged an agreement with the defense wherein they declined to seek an active Y.O.A. sentence so the defense could ask for a suspended sentence. However, the indictment was never amended to reflect the reduced sentence.
Rowe ultimately pled guilty to strong arm robbery. Judge Newman sentenced him to six years under the youthful offender act. Rowe was given credit for 45 days of jail time.
Rowe argues the circuit court did not have proper subject matter jurisdiction to accept his guilty plea to strong arm robbery on an indictment for attempted armed robbery. We agree.
A circuit court acquires subject matter jurisdiction over a criminal matter if: (1) there has been an indictment which sufficiently states the offense; (2) the defendant has waived presentment of the indictment; or (3) the offense in a lesser included offense the crime charged in the indictment. State v. Primus, 349 S.C. 576, 564 S.E.2d 103 (2002). Here, the indictment was for attempted armed robbery and made no reference to the substantive crime of strong arm robbery. Rowe made no waiver of the indictment during the colloquy. Finally, strong arm robbery is not a lesser-included offense of attempted armed robbery. See State v. Elliot 346 S.C. 603, 552 S.E.2d 727 (2001) (despite a few anomalies, the Court reiterates it’s commitment to the elements test for determining whether a crime qualifies as a lesser included offense); State v. Bullard, 348 S.C. 611, 560 S.E.2d 436 (Ct. App. 2002) (where body of indictment was consistent with charge of attempted armed robbery the court lacked subject matter jurisdiction to convict of armed robbery).
Accordingly, the circuit court could not accept Rowe’s guilty plea because it lacked proper subject matter jurisdiction over him. Rowe’s conviction must be
CURETON, ANDERSON and HUFF, JJ., concur.