State v. Grubbs

THIS OPINION HAS NO PRECEDENTIAL VALUE

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.

Shaun Bradley Grubbs, Appellant.

Appeal From Richland County

G. Thomas Cooper, Jr., Circuit Court Judge

Unpublished Opinion No. 2007-UP-548

Submitted October 1, 2007 – Filed December
12, 2007

APPEAL DISMISSED

Appellate Defender Eleanor Duffy Cleary, South Carolina
Commission, of Columbia, for Appellant.

Teresa A. Knox, Deputy Director for Legal Services, Tommy Evans,
Jr., Legal Counsel, and J. Benjamin Aplin, Legal Counsel, South Carolina
Department of Probation, Parole, and Pardon Services, all of Columbia, for
Respondent.

PER CURIAM:  Shaun
Grubbs pled guilty to possession with intent to distribute marijuana.  Grubbs
was sentenced to one year, suspended to one year probation and community
supervision program.  Pursuant to Anders v. California, 386 U.S. 738
(1967), counsel for Grubbs seeks to be relieved.

Grubbs
disputes the inclusion of the community supervision program (CSP) in his
sentence because he claims he was sentenced for a first offense and thus ineligible
for CSP.  The State contends Grubbs was sentenced for a third offense and that
the sentence was, therefore, well within statutory parameters.  We are unable
to determine with certainty from a review of the record, including the
sentencing sheet, whether Grubbs was sentenced for a first offense or a third
offense.  The sentencing sheet and indictment, however, tend to support the
State’s position that Grubbs was sentenced for a third offense.  We note that a
sentence that exceeds the statutory maximum
does not implicate subject matter jurisdiction. See State v. Johnston,
333 S.C. 459, 462, 510 S.E.2d 423, 424 (1999) (holding “Defendant’s challenge to the trial court’s sentencing authority
does not involve a question of subject
matter jurisdiction.”). 
Because the argument asserted on this direct review was not presented in the trial court, it is not preserved for review.  Cf. State v. Bennett, 375 S.C. 165, 169, 650 S.E.2d 490, 493 (Ct. App. 2007)
(analyzing the avenues available to an inmate who claims his sentence has
expired).  This court in Bennett granted relief in a direct appeal where
it was determined that the petitioner had served the maximum sentence and was
entitled to be released.  Conversely, we are presented with a direct appeal
where it is far from certain that Grubbs received a sentence in excess of that
authorized by statute.  Further, according to the record, Grubbs is out of jail
and his time within the community supervision program has expired.  Accordingly,
we find no preserved issue for direct appellate review.

After 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 dismiss this appeal
and grant counsel’s petition to be relieved.[1] 
The disposition of this direct appeal does not foreclose collateral relief as
may be provided by law.

APPEAL
DISMISSED.  

HEARN, C.J., HUFF,
and KITTREDGE, JJ., concur.

[1] We decide this case without oral argument
pursuant to Rule 215, SCACR.