State v. Rogers

THIS OPINION
HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN
ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

State of South
Carolina, Respondent,

v.

Rebekah Rogers, Appellant.

Appeal from Florence County

Michael G. Nettles, Circuit Court Judge

Unpublished Opinion No.  2011-UP-463 

Heard September 14, 2011 – Filed October
19, 2011

AFFIRMED

Patrick James McLaughlin, for Appellant.

Attorney General Alan Wilson, Chief Deputy
Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W.
Elliott, Senior Assistant Attorney General Harold Coombs, of Columbia, for
Respondent.

PER CURIAM: A municipal court jury found Rebekah
Rogers guilty of shoplifting.  Rogers appealed to the Florence County Court of
Common Pleas, which affirmed the conviction.  We affirm.

1. As to
Rogers' argument that a uniform traffic ticket was insufficient to confer
jurisdiction on the municipal court to try the shoplifting charge, we hold that
it was incumbent on her to raise this issue before the jury was sworn in order
to preserve this issue for appeal.  See State v. Gentry, 363 S.C.
93, 101, 610 S.E.2d 494, 499 (2005) ("[I]f an indictment is challenged as
insufficient or defective, the defendant must raise that issue before the jury
is sworn and not afterwards."); id. at 106, 610 S.E.2d at 501
(expressly overruling Odom v. State, 350 S.C. 300, 566 S.E.2d 528
(2002), wherein the South Carolina Supreme Court held that the absence of a charging
document could not be cured by an oral waiver of presentment during a guilty
plea). 

2. As to
the merits of whether service of the uniform traffic ticket on Rogers conferred
jurisdiction on the municipal court to try her on the shoplifting charge, we
hold that notwithstanding the requirement in South Carolina Code section
22-3-710 (2007) that "[a]ll proceedings before magistrates in criminal
cases shall be commenced on information under oath, plainly and substantially
setting forth the offense charged, upon which, and only which, a warrant of
arrest [shall] issue," the South Carolina legislature has conferred authority
on the summary courts to dispose of criminal matters such as the shoplifting
charge at issue in this appeal.  See S.C. Code Ann. § 14-25-45 (Supp.
2010) ("The [municipal] court shall also have all such powers, duties and
jurisdiction in criminal cases made under state law and conferred upon
magistrates."); S.C. Code Ann. § 16-13-110 (2003) (stating a shoplifting
charge is triable in magistrate's court "if the value of the shoplifted
merchandise is one thousand dollars or less")[1]; S.C. Code Ann. § 56-7-10 (2006 &
Supp. 2010) (omitting shoplifting from a list of offenses for which a uniform
traffic ticket is required to effect an arrest, but also providing that "[t]he
service of the uniform traffic ticket shall vest all traffic,  recorders', and
magistrates' courts with jurisdiction to hear and dispose of the charge for
which the ticket was issued and served"); S.C. Code Ann. § 56-7-15 (2006
& Supp. 2010) (allowing law enforcement to use a uniform traffic ticket
"to arrest a person for an offense committed in the presence of a law
enforcement officer if the punishment is within the jurisdiction of magistrates
court and municipal court").

3. Regarding
Rogers' complaints that the circuit court erred in finding that the State
complied with the requirement in section 56-7-15(A) of the South Carolina Code
(2006) to furnish certain information to the State Law Enforcement Division and
that this alleged error resulted in an improper conclusion that the
prerequisites for subject matter jurisdiction were met, we hold that because these
issues were not raised during the municipal court proceedings, they were not
preserved for appeal.  See State v. Oxner, 391 S.C. 132, 134, 705
S.E.2d 51, 52 (2011) ("Even though subject matter jurisdiction may be
raised at anytime [sic], there is no error preservation exception allowing a
party to bypass calling an erroneous ruling to the attention of the tribunal making
it before appealing that ruling to a higher court.").

4. As to
Rogers' argument that section 56-7-15 is unconstitutional because it allows an
arrest without the presentation of information under oath, we hold Rogers has
not preserved this issue for appeal because it was not made during the
municipal court hearing.  See State v. Sheppard, 391 S.C. 415,
423, 706 S.E.2d 16, 20 (2011) (holding the defendant's argument that a statute
was an unconstitutional ex post facto law was not preserved for appellate review
because it was not raised during the proceedings below).  In any event, based
on the arresting officer's testimony about his observations that indicated to
him Rogers was attempting to conceal merchandise in order to avoid paying for
it, we hold the arrest was proper.  See State v. Martin, 275 S.C.
141, 145, 268 S.E.2d 105, 107 (1980) (stating an officer can "arrest for a
misdemeanor, without a warrant, where the facts and circumstances within his
observation give him probable cause to believe that the crime has been freshly
committed").

AFFIRMED.

FEW, C.J.,
THOMAS and KONDUROS, JJ., concur.

[1]  Section 16-13-110 was amended in 2010; however, the
incident and subsequent trial took place in 2009.