State v. Fletcher

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.

Richard Fletcher,       
Appellant.

Appeal From Richland County

G. Thomas Cooper, Jr., Circuit Court
Judge

Unpublished Opinion No. 2004-UP-164

Submitted January 29, 2004 – Filed March 15, 2004

VACATED

Assistant Appellate Defender
Robert M. Pachak, Office of Appellate Defense, of Columbia, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney
General John W. McIntosh, Senior Assistant Attorney General Harold M. Coombs,
Jr.;  and Solicitor Warren Blair Giese, all of Columbia, for Respondent.

PER CURIAM: Richard Fletcher
was indicted for second-degree lynching.  Fletcher pled guilty to assault and
battery of a high and aggravated nature as a lesser-included offense of lynching
and was sentenced to five years imprisonment, suspended on the service of three
years probation.  Fletcher appeals, arguing the circuit court lacked subject
matter jurisdiction to accept his plea to assault and battery of a high and
aggravated nature because it is not a lesser-included offense of lynching.

FACTUAL/PROCEDURAL BACKGROUND

A grand jury indicted Fletcher for second-degree
lynching.    Subsequently, Fletcher pled guilty to assault and battery of a
high and aggravated nature (“ABHAN”).  Fletcher appeals.

LAW/ANALYSIS

Fletcher argues ABHAN is not a lesser-included
offense of lynching, and thus, the circuit court lacked subject matter jurisdiction
to accept his plea.  We agree.

“The lack of subject matter jurisdiction over a criminal
case 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. Guthrie, 352 S.C.
103, 107, 572 S.E.2d 309, 311 (Ct. App. 2002).  A circuit court lacks subject
matter jurisdiction to accept a guilty plea unless: 1) there is an indictment
that sufficiently states the offense; 2) the defendant has waived presentment
of the indictment; or 3) the plea is to a lesser-included offense of the crime
charged in the indictment.  Knox v. State, 340 S.C. 81, 84, 530 S.E.2d
887, 888 (2000).  “The test for determining when a crime is a lesser included
offense is whether the greater of the two offenses includes all the elements
of the lesser offense.”  Id.  

In Knox v. State, although the defendant
was indicted for second-degree lynching, he pled guilty to ABHAN as a lesser-included
offense of second-degree lynching.  Our supreme court determined that because
all of the elements of ABHAN are not included in the offense of second-degree
lynching, ABHAN is not a lesser-included offense of that crime.  Id.
at 84-85, 530 S.E.2d at 888-889.

Here, a grand jury indicted Fletcher for second-degree
lynching.  Subsequently, as in Knox, Fletcher pled guilty to ABHAN.  At
the plea hearing, the circuit court accepted Fletcher’s guilty plea to ABHAN
as a lesser-included offense of lynching.  However, “ABHAN is not a lesser-included
offense [of lynching].”  Id. at 85, 530 S.E.2d at 889.  Furthermore,
Fletcher did not waive presentment of an indictment for ABHAN.

Because Fletcher was not indicted for
ABHAN, he did not waive presentment of an indictment for ABHAN, and ABHAN is
not a lesser-included offense of second-degree lynching, the circuit court lacked
subject matter jurisdiction to accept Fletcher’s guilty plea.  See Id.

CONCLUSION

For the foregoing reasons, Fletcher’s conviction
is

VACATED. 

GOOLSBY, HOWARD and KITTREDGE, JJ.,
concurring.