State v. Thompson

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

The State,       
Respondent,

v.

Clifford Thompson,       
Appellant.

Appeal From Berkeley County

James E. Lockemy, Circuit Court Judge

Unpublished Opinion No.
2003-UP-252

Submitted January 29, 2003 – Filed April
3, 2003

AFFIRMED IN PART AND VACATED IN PART

Assistant Appellate Defender Aileen P. Clare, of Columbia;
for Appellant.

Attorney General Henry Dargan
McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney
General Charles H. Richardson, of Columbia; Ralph E. Hoisington, of Charleston;
for Respondent.

PER CURIAM:  Clifford Thompson pled guilty
to six counts of armed robbery and four counts of kidnapping.  He received concurrent
sentences of twenty-five years imprisonment for each charge.  Thompson appeals.

FACTS

Thompson was charged with kidnapping and armed
robbery offenses in Berkeley, Charleston, Lexington, and Richland Counties. 
Pursuant to a plea agreement, Thompson entered guilty pleas to all the charges
in one proceeding held in Charleston County.  On appeal, Thompson does not raise
any issue with respect to the guilty pleas for the charges in Berkeley, Lexington,
or Richland counties.

At the plea hearing, the judge discussed with Thompson
his right to have jury trials in each of the four counties.  Thompson stated
he wanted the judge to handle all of the charges against him.  The plea judge
also informed Thompson that he could have the two Charleston County indictments
presented to the grand jury.  Thompson orally waived presentment.  The plea
judge ascertained that Thompson was satisfied with counsel, then explained: 
the elements of the charged offenses, the maximum possible sentences, and the
rights associated with a jury trial.

The plea judge accepted Thompson’s pleas, finding he freely
and voluntarily waived his rights to a jury trial, and that he “freely and voluntarily
waived [his] rights to the grand jury presentment in regard to the matters out
of Charleston County.”  Thompson received an aggregate sentence of twenty-five
years imprisonment. 

LAW/ANALYSIS

Thompson argues the lower court did not
have jurisdiction over the two Charleston indictments because there were no
written waivers of presentment.  We agree.

“[I]n the absence of an indictment by the grand
jury of the county where the offense was committed 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). 
A valid waiver of presentment must be obtained in writing.  Odom v. State,
350 S.C. 300, 302, 566 S.E.2d 528, 529 (2002).  An oral waiver is not sufficient. 
Id.

It is clear that Thompson orally waived presentment
to the two Charleston County charges.  However, it is equally clear that there
were no written waivers of presentment for these offenses.  The two indictments
were neither true-billed nor have a written and signed waiver of presentment
upon them.  Thompson’s oral waiver was not sufficient to satisfy the requirements
of a valid waiver of presentment.  As such, the plea judge lacked jurisdiction
to accept the guilty pleas for the two offenses committed in Charleston County. 

CONCLUSION

Based upon the foregoing, the lower court lacked subject
matter jurisdiction to accept Thompson’s guilty pleas to the kidnapping and
armed robbery offenses which occurred in Charleston County.  Accordingly, we
vacate the two Charleston County sentences and affirm the remaining eight sentences.

AFFIRMED IN PART AND VACATED IN PART.

HEARN, C.J., GOOLSBY and SHULER, JJ., concur.