Lambright v. Peeples

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

Bernard Lambright,       
Appellant,

v.

Rodney A. Peeples, Robert J. Harte, and Charles M. Condon,       
Respondents.

Appeal From Aiken County

James C. Williams, Jr., Circuit Court
Judge

Opinion No. 2003-UP-64

Submitted November 20, 2002 - Filed
January 22, 2003  

AFFIRMED

Bernard Lambright, pro se

Attorney General Henry D. McMaster, Assistant Deputy Attorney
General Donald J. Zelenka, and Assistant Deputy Attorney General Allen Bullard,
all of Columbia, for Respondents

PER CURIAM:  Bernard Lambright appeals the
denial of his petition for writ of mandamus.  Lambright petitioned the trial
court to dismiss his burglary indictment because it did not state the offense
with sufficient certainty and particularity. 

Lambright was tried by a jury and convicted of
first degree criminal sexual conduct and burglary.  The trial court sentenced
Lambright to life imprisonment on the burglary conviction and thirty years concurrent
on the CSC conviction, suspended upon serving twenty years with five years probation. 
Subsequently, Lambright’s conviction for CSC was reversed and remanded for a
new trial.  The Supreme Court affirmed Lambright’s burglary conviction.  State
v. Lambright, 279 S.C. 535, 309 S.E.2d 7 (1983).  On remand, the State elected
to nol pros the CSC charge against Lambright.

DISCUSSION

The State’s decision to nol pros Lambright’s
CSC charge is the impetus behind his petition for writ of mandamus to direct
the court to dismiss his burglary indictment. [1]   In the petition, Lambright argued the State’s dismissal of
the CSC charge “continue[s] [Lambright’s] imprisonment on an indictment that
fails to specify the object of the burglary.”  Lambright contended the burglary
indictment does not state the offense with sufficient certainty and particularity. 

The trial court denied Lambright’s petition, finding the
dismissal of the CSC charge did not impact the burglary conviction.

Lambright appeals from the trial court’s denial of his petition
for writ of mandamus.  Lambright argues a burglary indictment containing an
allegation of intent to commit an unspecified felony is insufficient to continue
his imprisonment.

Ordinarily, a writ of mandamus may not be used as a substitute
for appeal.  United States v. 91.69 Acres of Land, 334 F.2d 229 (4th
Cir. 1964).  A writ of mandamus is used primarily to enforce an established
right and to enforce a corresponding imperative duty created or imposed by law. 
Riverwoods, LLC v. County of Charleston, 349 S.C. 378, 563 S.E.2d 651
(2002).  To obtain the writ requiring the performance of an act, the petitioner
must show:  (1) a duty of respondent to perform the act; (2) the ministerial
nature of the act; (3) the petitioner’s specific legal right for which discharge
of the duty is necessary; and (4) a lack of any other legal remedy.  Id. 
If the petitioner’s legal right is doubtful a writ of mandamus cannot rightfully
issue.  Id.   

Lambright’s petition for writ of mandamus challenges the
sufficiency of his burglary indictment.  As such, Lambright’s argument challenges
the trial court’s subject matter jurisdiction to try Lambright for burglary. 
Questions regarding subject matter jurisdiction may be raised at any time. 
Carter v. State, 329 S.C. 355, 495 S.E.2d 773 (1998). 

 The trial court has subject matter jurisdiction if there
has been an indictment sufficiently stating the offense.  Locke v. State,
341 S.C. 54, 533 S.E.2d 324 (2000).  An indictment is sufficient to convey jurisdiction
if it apprises the defendant of the elements of the offense intended to be charged
and informs the defendant of the circumstances he must be prepared to defend. 
Granger v. State, 333 S.C. 2, 507 S.E.2d 322 (1998); see Garrett
v. State, 320 S.C. 353, 465 S.E.2d 350 (1995) (stating an indictment is
adequate 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); Browning v. State, 320 S.C. 366,
368, 465 S.E.2d 358, 359 (1995) (“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.”).

Lambright was indicted in October 1981 for committing the
common law offense of burglary.  Under the common law, burglary consisted of
the breaking and entering of a dwelling house of another in the nighttime, with
the intent to commit a felony.  State v. Clamp, 225 S.C. 89, 80 S.E.2d
918 (1954).  A review of Lambright’s burglary indictment shows this offense
was stated with sufficient certainty and particularity to vest the trial court
with subject matter jurisdiction.

Furthermore, Lambright’s argument that the burglary indictment
is insufficient because it contained an allegation of his intent to commit an
unspecified felony has been foreclosed by State v. Adams, 277
S.C. 115, 283 S.E.2d 582 (1981).

In Adams, the defendant argued his housebreaking indictment
was fatally defective because it failed to allege the particular crime intended. 
The indictment stated, in part, that the defendant “did . . . break and enter
the house . . . with intent to commit a crime therein.”  Id. at 124-25,
283 S.E.2d at 587.  The Court held the indictment was sufficient given there
was no indication the defendant was unfairly prejudiced since the defendant
had been indicted for the crimes accompanying the housebreaking.  See also
State v. Brooks, 277 S.C. 111, 283 S.E.2d 830 (1981) (holding a common
law burglary indictment is sufficient if it charges one with breaking and entering
the dwelling of another in the nighttime with intent to commit any crime, whether
it be a felony or misdemeanor).  There is no requirement in the law that the
felony or crime intended by the defendant be alleged in a burglary indictment.

In the present case, Lambright was indicted for CSC
in addition to the burglary charge.  There is no evidence Lambright was not
informed of the CSC charge or that Lambright was not prepared to defend the
CSC charge in relation to the burglary charge.  Thus, the original trial court
had subject matter jurisdiction and the circuit court did not err in denying
Lambright’s petition for writ of mandamus given there is no specific legal right
entitling Lambright to release from imprisonment.

CONCLUSION

Based on the foregoing
analysis, the trial court’s decision to deny Lambright’s petition for writ of
mandamus is

AFFIRMED.

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

[1]    The burglary indictment stated:  “That Bernard Lambright did in
Aiken County on or about the 14th day of August, 1981, in the nighttime,
break and enter the dwelling house of another, to wit:  Betty Sue Demons with
intent to commit a felony therein.”