State v. Bruce

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.

Keith B. Bruce,       
Appellant.

Appeal From Oconee County

Alexander S. Macauley, Circuit Court
Judge

Unpublished Opinion No. 2004-UP-223

Submitted January 29, 2004 – Filed March
30, 2004

REMANDED

E. Delane Rosemond, of Seneca, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney
General John W. McIntosh, Assistant Deputy Attorney General Charles H. Richardson,
Senior Assistant Attorney General Harold M. Coombs, all of Columbia; and Solicitor
Druanne D. White, of Anderson, for Respondent.

PER CURIAM:  Keith B. Bruce was
convicted of distribution of marijuana and distribution of marijuana within
the proximity of school.  Subsequently, the circuit court sentenced him to ten
years imprisonment for distribution of marijuana and fifteen years imprisonment
for distribution of marijuana within the proximity of a school, the sentences
to run concurrently.  Bruce appeals, arguing the circuit court erred by denying
his motion for directed verdict.  We remand with instructions.

FACTUAL/PROCEDURAL BACKGROUND

Bruce was indicted for distribution of marijuana
and distribution of marijuana within the proximity of a school.  Subsequently,
a jury convicted him on both charges, and the circuit court sentenced him to
ten years imprisonment for distribution of marijuana and fifteen years imprisonment
for distribution of marijuana within the proximity of a school, the sentences
to run concurrently.  Bruce appeals.

LAW/ANALYSIS

Bruce argues the circuit court erred by denying
his motion for directed verdict.  We do not reach this issue, as we remand this
case for a determination of whether the grand jury true billed his indictments.

The jurisdiction of a court over the subject matter
of a proceeding is fundamental.  Brown v. State, 343 S.C. 342, 346, 540
S.E.2d 846, 848 (2001).  Thus, the 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.  State v. Brown, 351 S.C. 522, 525-26, 570 S.E.2d
559, 560 (Ct. App. 2002). 

The circuit court lacks subject matter jurisdiction to convict
a defendant of an offense unless: 1) there has been an indictment that sufficiently
states the offense; 2) the defendant has waived presentment of the indictment;
or 3) the offense is a lesser-included offense of the crime charged in the indictment. 
State v. Primus, 349 S.C. 576, 579, 564 S.E.2d 103, 105 (2002).  

When the action of the grand jury is not written on the indictment,
and evidence does not exist within the record to indicate the action of the
grand jury, an appellate court must remand the case to the circuit court for
a determination of whether the indictment was true billed.  See State
v. Grim, 341 S.C. 63, 67, 533 S.E.2d 329, 330 (2000) (holding where grand
jury foreman signed and dated the indictment but failed to state the action
of the grand jury, the appropriate remedy was to remand the case to the circuit
court for a determination of whether the grand jury true billed the indictment);
Anderson v. State, 338 S.C. 629, 633, 527 S.E.2d 398, 400 (Ct. App. 2000)
(same).  Furthermore, upon remand, the State bears the burden of proving subject
matter jurisdiction.  See Id.

In the present case, the grand jury foreman signed and dated
both indictments.  However, no action of the grand jury is stamped or written
on either indictment.  Furthermore, no evidence exists within the record indicating
the action of the grand jury.  Thus, we remand the case for a hearing on whether
the circuit court was properly vested with subject matter jurisdiction during
Bruce’s trial. At the hearing, the State shall bear the burden of proving subject
matter jurisdiction.

CONCLUSION

For the foregoing reasons, this case is REMANDED to
the circuit court, and the appeal is stayed pending resolution of this
matter.

GOOLSBY, HOWARD, and KITTREDGE, JJ., concurring.