THE STATE OF SOUTH CAROLINA
In The Court of Appeals
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The State, |
Respondent, |
v.
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Bobby Joe Brown # 2, |
Appellant. |
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Appeal From Abbeville County
Wyatt T. Saunders, Jr, Circuit Court Judge
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Unpublished Opinion No.2003-UP-641
Submitted August 20, 2003 – Filed November 4, 2003
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VACATED
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Chief Attorney Daniel T. Stacey, of Columbia, for Appellant
Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Charles H. Richardson, all of Columbia; and Solicitor William Townes Jones, of Greenwood, for Respondent.
PER CURIAM: Bobby Joe Brown pled guilty to two counts of distribution of crack cocaine. He was sentenced to eight years imprisonment, to be served concurrently with each other and with his other sentence for possession with intent to distribute. He appeals his plea and sentence as to one of the counts of distribution. We vacate that conviction.
While under video and audio surveillance, a confidential informant (CI) for the Abbeville County Sheriff’s Department conducted a controlled purchase of crack cocaine from Brown on March 29, 2001. The CI conducted another controlled purchase of crack cocaine from Brown on March 31, 2001. Brown was indicted for distribution of crack cocaine for his actions on March 31, 2001, in indictment number 158. With regard to the controlled purchase on March 29th, indictment number 159 charged Brown with PWID crack cocaine.
At the beginning of the guilty plea proceeding, the solicitor informed the trial judge that indictment 159 incorrectly charged Brown with PWID and should have read distribution. Noting that distribution and PWID are within the same statute, the solicitor moved to amend the indictment. Brown’s counsel consented to the amendment as a condition of the negotiated plea. The trial judge allowed the amendment, and the language on indictment 159 stating that Brown “possess[ed] with intent to” was struck, leaving only the word “distribute” on the indictment. The trial judge initialed above the change and wrote the date and the words “on motion and consent.” The parties did not discuss waiver of presentment of the indictment, nor did Brown indicate he was waiving presentment when he signed the guilty plea portion of the original indictment.
The plea proceeding continued, and the trial judge found Brown’s pleas to two counts of distribution were knowingly and voluntarily entered after he was informed of his trial rights waived by the plea and the possible sentences he faced. The trial judge sentenced Brown to eight years on each indictment as recommended by the State. Brown appeals.
ISSUE
Whether the trial court had subject matter jurisdiction to accept the guilty plea on one of the indictments where the indictment was amended from possession with intent to distribute (PWID) to distribution?
DISCUSSION
Brown argues the amendment from PWID to actual distribution materially changed the indicted offense such that the trial court lost subject matter jurisdiction. The State argues the change had no practical effect because PWID and distribution are located within the same statutory section. Thus, the State argues, Brown was essentially pleading guilty to the same offense and the trial court had subject matter jurisdiction.
The trial court has subject matter jurisdiction if (1) there has been an indictment that sufficiently states the offense; (2) the defendant waives the indictment; or (3) the charge is a lesser-included offense of the indicted charge. State v. Primus, 349 S.C. 576, 564 S.E.2d 103 (2002); State v. Lynch, 344 S.C. 635, 545 S.E.2d 511 (2001).
An indictment is sufficient if the offense is stated with sufficient certainty and particularity to enable the court to know what judgment to pronounce, and the defendant to know what he is called upon to answer and whether he may plead an acquittal or conviction thereon. The true test of the sufficiency of an indictment is not whether it could be made more definite and certain, but whether it contains the necessary elements of the offense intended to be charged and sufficiently apprises the defendant of what he must be prepared to meet.
Browning v. State, 320 S.C. 366, 368, 465 S.E.2d 358, 359 (1995); State v. Williams, 346 S.C. 424, 431-32, 552 S.E.2d 54, 58 (Ct. App. 2001); S.C. Code Ann § 17-19-20 (2003). Indictments may be amended provided “such amendment does not change the nature of the offense charged.” S.C. Code Ann. § 17-19-100 (2003); Lynch, 344 S.C. at 639, 545 S.E.2d at 513. Subject matter jurisdiction may not be waived, “even by consent of the parties.” Hooks v. State, 353 S.C. 48, 53, 577 S.E.2d 211, 214 (2003). Lack of subject matter jurisdiction can be raised at any time. State v.Ervin, 333 S.C. 351, 510 S.E.2d 220 (Ct. App. 1998).
In Lynch, the defendant was indicted for first degree burglary for entering a dwelling with the intent to commit a crime therein, “during the hours of darkness.” At the beginning of trial, the trial court allowed the State to amend the indictment to change the aggravating circumstance from “during the hours of darkness,” to “did cause physical injury to a person who is not a participant in the crime while defendant was effectuating entry or while in the dwelling or in immediate flight.” Both aggravating circumstances were found within the burglary statute, S.C. Code Ann. § 16-11-311(A)(1)(b) and (A)(3) (Supp. 2000). Our Supreme Court held the amendment deprived the trial court of subject matter jurisdiction because it was a material change to what the defendant was called upon to answer. Lynch, 344 S.C. at 640-41, 545 S.E.2d at 514.
The amendment in the present case is similar to that in Lynch. Indictment 159 originally charged Brown with PWID in violation of S.C. Code Ann. § 44-53-375(B) (2002). This section provides that a person who “manufactures, distributes, dispenses, delivers, purchases, or otherwise aids, abets, attempts, or conspires to manufacture, distribute, dispense, deliver, or purchase, or possesses with intent to distribute, dispense, or deliver ice, crank, or crack cocaine . . .” is guilty of a felony. S.C. Code Ann. § 44-53-375(B) (2002) (emphasis added). Although criminalized within the same statute, possession with intent to distribute and distribution of crack cocaine are separate offenses. See State v. Brown, 319 S.C. 400, 406, 461 S.E.2d 828, 831 (Ct. App. 1995) (“Both distribution of crack cocaine and possession with intent to distribute are criminalized in the same subsection, and both carry a maximum sentence of fifteen years and a fine of at least $25,000 for a first time offender.”). The elements of distribution of crack include: (1) the defendant had actual control over the crack; (2) the defendant knowingly distributed or delivered the crack; (3) the substance was later determined to actually be crack upon analysis; and (4) the offense occurred in the county where he was charged. State v. Gill, 355 S.C. 234, 584 S.E.2d 482 (Ct. App. 2003).
Although distribution and PWID are listed within the same statute, distribution is a different offense than PWID. Thus, the amendment materially changed what Brown was called to answer. Accordingly, the trial court lacked subject matter jurisdiction to accept Brown’s plea on indictment number 159. Further, Brown’s consent to the amendment does not waive the court’s lack of subject matter jurisdiction.
The trial court lost subject matter jurisdiction when it allowed the amendment of indictment 159 from PWID to distribution. Accordingly, Brown’s conviction on that indictment is
VACATED.
HEARN, C.J., CONNOR and ANDERSON, JJ., concur.