State v. Scott

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

The State,       
Respondent,

v.

James Scott,       
Appellant.

Appeal From Aiken County

William P. Keesley, Circuit Court Judge

Unpublished Opinion No. 2003-UP-037

Submitted November 20, 2002 – Filed
January 15, 2003

REMANDED

Chief Appellate Defender Daniel T. Stacey, of Columbia, for
appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney
General John W. McIntosh, Assistant Attorney General W. Rutledge Martin, all
of Columbia; and Solicitor Barbara R. Morgan, of Aiken, for respondent.

PER CURIAM:  In 1998,
James Scott pled guilty to criminal sexual conduct with a minor in the second
degree and was sentenced to ten years imprisonment suspended on the service
of five years probation.  He also pled guilty to possession of crack cocaine
and was sentenced to five years imprisonment.  In 2002, Scott pled guilty to
failure to register as a sex offender and violation of community supervision. 
He was sentenced to ninety days imprisonment for failing to register and had
one year of his probation revoked for violating community supervision.

Scott appeals arguing the trial court lacked subject
matter jurisdiction over the underlying offenses from 1998 upon which his alleged
2002 violations were premised.  We remand for an evidentiary hearing pursuant
to State v. Grim, 341 S.C. 63, 66, 533 S.E.2d 329, 330 (2000).

DISCUSSION

Scott asserts the trial court did not have subject
matter jurisdiction to accept his guilty pleas with respect to both charges
from 1998 because the indictments do not indicate what action, if any, was taken
by the grand jury. [1]

Because of its fundamental nature, the issue of
a defect in subject matter jurisdiction may be raised at any time including
when raised for the first time on appeal to this Court.  Brown v. State,
343 S.C. 342, 346, 540 S.E.2d 846, 848-49  (2001).  Furthermore, this Court
must, on its own motion, raise the issue of subject matter jurisdiction to ensure
the “orderly administration of justice.”  State v. Castleman, 219 S.C.
136, 139, 64 S.E.2d 250, 252 (1951).

A court without subject matter jurisdiction may
not properly act and any action taken by that court is void and without
legal effect.  Brown, 343 S.C. at 346, 540 S.E.2d. at 849; State v.
Funderburk, 259 S.C. 256, 261, 191 S.E.2d 520, 522 (1972).  The subject
matter jurisdiction of a court “is determined by the Constitution, the laws
of the state, and is fundamental.”  Anderson v. Anderson, 299 S.C. 110,
115, 382 S.E.2d 897, 900 (1989).

“[N]o person may be held to answer for any crime
. . . unless on a presentment or indictment of a grand jury . . . .  The General
Assembly may provide for the waiver of an indictment by the accused.”  S.C.
Const. art. I, § 11; see also S.C. Code Ann. § 17-23-130 (Supp. 2001)
(providing for the waiver of presentment of indictments).  Our supreme court
has held that “in the absence of an indictment by the grand jury . . . or a
valid waiver of presentment of indictment, the circuit court lacks subject matter
jurisdiction over the offense.”  State v. Evans, 307 S.C. 477, 479, 415
S.E.2d 816, 817 (1992); see also Grim, 341 S.C. at 66, 533 S.E.2d
at 330 (holding “a circuit court does not have subject matter jurisdiction to
hear a guilty plea unless the defendant has been indicted by a grand jury or
has waived presentment”).

Moreover, where a question exists regarding whether
an indictment was true-billed or a valid waiver was executed, this Court should
remand the case to the circuit court to “conduct an evidentiary hearing to determine
whether the indictment was true-billed; or resubmit the indictment for grand
jury reconsideration; or effect a waiver of presentment of the indictment to
the grand jury and, again, entertain the defendant’s plea; or simply allow withdrawal
of the plea and proceed anew.”  Id. at 67, 533 S.E.2d at 330.

In the present case, Scott argues, the State concedes,
and the record evidences, neither indictment was properly stamped “true-billed,”
and Scott never affected a waiver of presentment.

CONCLUSION

Therefore, this case is remanded for a hearing
to determine whether the absence of the words “true bill” from the face of the
indictments was a mere scrivener’s error.  On remand, if the State cannot prove
the circuit court was properly vested with subject matter jurisdiction, the
circuit court is ordered to vacate Scott’s conviction.  See id.

REMANDED. [2]

CONNOR, STILWELL, and HOWARD, JJ., concur.

[1] A review of the 1998 indictments reveals no indication that either
of them was stamped “true-billed,” nor that a waiver of presentment was executed
by Scott.

[2] Because oral argument would not aid the Court in
resolving any issue on appeal, we decide this case without oral argument pursuant
to Rule 215, SCACR.