State v. Rowe

THE STATE OF SOUTH CAROLINA

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

The State,       
Respondent,

v.

Robert Rowe,       
Appellant.

Appeal From Richland County

Clifton Newman, Circuit Court Judge

Unpublished Opinion No. 2003-UP-392

Submitted April 18, 2003 – Filed June
12, 2003  

VACATED

Chief Attorney Daniel T. Stacey, of Columbia; for Appellant.

Attorney General Henry Dargan McMaster; Chief Deputy Attorney General John W.
McIntosh; Assistant Deputy Attorney Charles H. Richardson; Senior Assistant
Attorney General Harold W. Coombs, of Columbia; Warren Blair Giese, of Columbia;
for Respondent.

PER CURIAM:  Robert Rowe (Rowe) appeals from his guilty plea to strong
arm robbery.  Rowe contends the circuit court did not have subject matter jurisdiction
to accept his plea because the indictment returned against him was for attempted
armed robbery.

FACTS

On November 3, 2000, Rowe and two co-defendants (Duncan and
Reed)  spotted a homeless man (Tabor) on the sidewalk as they were traveling
in their car. Reed informed Rowe and Duncan he intended to rob Tabor. Subsequently,
Reed, armed with a gun, got out of the car and attempted to rob Tabor. Tabor
did not even have a wallet or any cash on his person. Rowe exited the car with
Reed and Duncan but said nothing during the attempted robbery.  The extent of
Rowe’s involvement was limited to his presence at the crime scene.

The police arrested all three boys.  Rowe cooperated with the police. 
Rowe was indicted for attempted armed robbery (01-GS-40-57431).  During his
guilty plea the State acknowledged they reduced the sentence to attempted
strong arm robbery and dismissed other charges. (emphasis added)  The
State also acknowledged an agreement with the defense wherein they declined
to seek an active Y.O.A. sentence so the defense could ask for a suspended sentence. 
However, the indictment was never amended to reflect the reduced sentence.

Rowe ultimately pled guilty to strong arm robbery.  Judge Newman
sentenced him to six years under the youthful offender act. Rowe was given credit
for 45 days of jail time.

DISCUSSION

Rowe argues the circuit court did not have proper subject
matter jurisdiction to accept his guilty plea to strong arm robbery on an indictment
for attempted armed robbery.  We agree.

A circuit court acquires subject matter jurisdiction over a criminal
matter if:  (1) there has been an indictment which sufficiently states the offense;
(2) the defendant has waived presentment of the indictment; or (3) the offense
in a lesser included offense the crime charged in the indictment.  State
v. Primus, 349 S.C. 576, 564 S.E.2d 103 (2002).  Here, the indictment was
for attempted armed robbery and made no reference to the substantive crime of
strong arm robbery.  Rowe made no waiver of the indictment during the colloquy. 
Finally, strong arm robbery is not a lesser-included offense of attempted armed
robbery.  See State v. Elliot 346 S.C. 603, 552 S.E.2d 727 (2001)
(despite a few anomalies, the Court reiterates it’s commitment to the elements
test for determining whether a crime qualifies as a lesser included offense);
State v. Bullard, 348 S.C. 611, 560 S.E.2d 436 (Ct. App. 2002) (where
body of indictment was consistent with charge of attempted armed robbery the
court lacked subject matter jurisdiction to convict of armed robbery).

Accordingly, the circuit court could not accept Rowe’s guilty plea
because it lacked proper subject matter jurisdiction over him.  Rowe’s conviction
must be

VACATED.

CURETON, ANDERSON and HUFF, JJ., concur.