State v. Barrs

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.

Appeal From Lexington County

Marc H. Westbrook, Circuit Court Judge

Unpublished Opinion No. 2004-UP-623

Submitted December 1, 2004 – Filed December
10, 2004

VACATED

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.

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

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