State v. Maddox

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.

Sean Maddox,       
Appellant.

Appeal From Richland County

G. Thomas Cooper, Jr., Circuit Court
Judge

Unpublished Opinion No. 2004-UP-203

Submitted January 29, 2004 – Filed March
24, 2004

DISMISSED IN PART, VACATED IN PART

Assistant Appellate Defender Eleanor Duffy Cleary,  S.C. Office
of Appellate Defense, of Columbia, for Appellant.

Attorney General Henry D. McMaster, Chief Deputy Attorney
General John W. McIntosh, Assistant Deputy Attorney General Charles H. Richardson,
all of Columbia; and Solicitor Warren Blair Giese, of Columbia, for Respondent.

PER CURIAM:  Sean Maddox (Appellant) pled
guilty to second-degree criminal sexual conduct (CSC) with a minor and pointing
and presenting a firearm.  He was sentenced to concurrent prison terms of ten
years for the CSC offense and three years for the firearm offense.

On appeal, counsel for Appellant has filed a final
brief along with a petition to be relieved as counsel.  Appellant has not filed
a pro se response.  After a thorough review of the record pursuant
to Anders v. California, 386 U.S. 738 (1967) and State v. Williams,
305 S.C. 116, 406 S.E.2d 357 (1991), we found the transcript of the plea proceedings
indicated Appellant had orally waived presentment of the indictments to a grand
jury, but the indictments in the record were left blank in the section for waiving
presentment.  There were no written waivers of presentment elsewhere in the
record.  See State v. Lynch, 344 S.C. 635, 639, 545 S.E.2d 511,
513 (2001) (“A circuit court has subject matter jurisdiction if:  (1) there
has been an indictment which sufficiently states the offense; (2) there has
been a waiver of indictment; or (3) the charge is a lesser included charge of
the crime charged in the indictment.”); In re Matthews, 345 S.C. 638,
643 n.4, 550 S.E.2d 311, 313 n.4 (2001) (“Lack of subject matter jurisdiction
can be raised at any time, can be raised for the first time on appeal, and can
be raised sua sponte by the court.” (citation omitted)), cert.
denied, 535 U.S. 1062 (2002).

As part of its Anders review, the Court
obtained the sentencing sheets on the two charges.  There is a written waiver
of presentment on the sentencing sheet for the charge of pointing and presenting
a firearm.   Accordingly, the appeal as to this charge is dismissed.  As to
the charge of second-degree CSC with a minor, the sentencing sheet does not
contain a written waiver of presentment.  Consequently, we vacate the conviction
on the CSC charge as the circuit court did not have subject matter jurisdiction
to accept Appellant’s plea.  See Odom v. State, 350 S.C. 300,
566 S.E.2d 528 (2002) (holding section 17-23-140 of the South Carolina Code
requires a waiver of presentment to be in writing and a defendant’s oral waiver
is insufficient to bestow subject matter jurisdiction).

Counsel’s petition to be relieved from further
representation is denied.

DISMISSED IN PART, VACATED IN PART. [1]

GOOSLBY, HOWARD, and KITTREDGE, JJ., concur.

[1]   This case is decided without oral argument pursuant to Rule 215,
SCACR.