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24844 - Granger v. State

Davis Adv. Sh. No. XX
S.E. 2d

THE STATE OF SOUTH CAROLINA

In The Supreme Court

Charles Granger, Jr., Respondent,

v.

State of South

Carolina, Petitioner.

ON WRIT OF CERTIORARI

Appeal From Greenville County

Frank Eppes, Trial Judge

Gerald C. Smoak, Post-Conviction Judge

Opinion No. 24844

Submitted September 24, 1998 - Filed October 26, 1998

REVERSED

Attorney General Charles M. Condon, Chief Deputy

Attorney General John W. McIntosh, Assistant

Deputy Attorney General Teresa A. Knox, all of

Columbia, for petitioner.

Robert M. Pachak, of South Carolina Office of

Appellate Defense, of Columbia, for respondent.

WALLER, A.J.: We granted certiorari to review the grant of

petitioner's application for post-conviction relief (PCR). We reverse.

FACTS

p.14


GRANGER v. STATE OF SOUTH CAROLINA

Petitioner, Charles Granger, Jr., was indicted for trafficking in cocaine.

The indictment reads:


That CHARLES GRANGER, JR. did in Greenville County on or

about June 16, 1994, knowingly sell, manufacture, deliver or

bring into the State of South Carolina, or did knowingly provide

financial assistance or otherwise aid, abet or conspire to sell,

manufacture, deliver or bring into the State or was knowingly in

actual or constructive possession of more than ten (10) grams

of Crack Cocaine. This is in violation of South Carolina Code of

Laws § 44-53-375. (Emphasis supplied).

Granger pled guilty. During his plea, it was revealed the quantity of crack

he had trafficked was 58.44 grams; the plea judge advised Granger the

potential sentence was between 7 and 25 years. He was sentenced to 15

years.1

Granger filed for PCR, contending his indictment was insufficient to put

him on notice that he could be sentenced for trafficking between 28 and 100

grams of crack. He claimed the indictment only put him on notice he could

be sentenced for trafficking between 10 and 28 grams of cocaine. The

circuit court agreed and remanded the case for resentencing.





DISCUSSION





South Carolina's trafficking statute, S.C. Code Ann. § 44-53-375(C)

(Supp. 1997) provides, in pertinent part, "A person who knowingly sells,

manufactures, delivers, purchases, or brings into this State, ... ten grams or

more ... of crack cocaine, ... is guilty of a felony which is known as

'trafficking in ... crack cocaine' and, upon conviction, must be punished [to

varying fines and sentences depending on] the quantity involved." The

statute then provides different sentences and fines, depending upon the

amount of drugs trafficked.2 Granger contends the indictment charging him


1 He was also sentenced to 5 years for possession with intent to distribute

marijuana; no challenge is raised to that conviction or sentence.

2 For a first offense, the sentences and fines are as follows:

(1) 10 to 28 grams-- not less than three years nor more than ten

years, and a fine of twenty-five thousand dollars;

(2) 28 grams to 100 grams-- not less than seven years nor more

than twenty-five years, and a fine of fifty thousand dollars;

p.15


GRANGER v. STATE-OF SOUTH CAROLINA





with trafficking "more than 10 grams" only put him on notice he was charged

with trafficking between 10 and 28 grams of crack. We disagree.





An indictment is sufficient if it apprises the defendant of the elements

of the offense intended to be charged and apprises the defendant what he

must be prepared to meet. State v. Evans, 322 S.C. 78, 470 S.E.2d 97 (1996).

In State v. Tower , 300 S.C. 86, 386 S.E.2d 462 (1989), we held an

,indictment which alleged the defendant "did traffic in cocaine by willfully,

unlawfully and knowingly having in his possession a quantity of cocaine" was

sufficient to confer subject matter jurisdiction notwithstanding its failure to

specify the quantity of cocaine alleged to be in defendant's possession. Under

Towery, the indictment here was sufficient. Accord State v. Darby, 516 So.2d

775 (Ala. Crim. App. 1986), rev'd on other grounds, 516 So. 2d 786

(1987)(indictment alleging defendant trafficked "28 grams or more" of cocaine,

without specifying the exact amount of cocaine sufficient; provisions of

trafficking relating to minimum sentencing requirements did not involve

"elements of the offense" of trafficking).3





Moreover, this case is distinguishable from other cases of this Court

dealing with amendments to an indictment. Under S.C.Code Ann. §

17-19-100 (1976), an indictment may be amended at trial only if the

amendment does not change the nature of the offense charged. Hope v.

State, 328 S.C. 78, 492 S.E.2d 76 (1997). In Hopkins v. State, 317 S.C. 7,

451 S.E.2d 389 (1994), this Court held the amendment to an indictment

changing the offense from felony driving under influence (DUI) causing great

bodily injury to felony DUI causing death, changed the nature of offense, as

punishment was increased from 10 to 25 years. Accord State v. Riddle, 301

S.C. 211, 391 S.E.2d 253 (1990) (amendment to indictment to increase offense




(3) 100 grams to 200 grams-- a mandatory term of

imprisonment of twenty-five years, and a fine of fifty thousand

dollars;

(4) 200 to 400 grams-- a mandatory term of imprisonment of

twenty-five years, and a fine of one hundred thousand dollars;

(5) 400 grams or more, a term of imprisonment of not less than

twenty-five years nor more than thirty years and a fine of two

hundred thousand dollars.

3 Similarly, this Court has recognized the punishment for a crime is not and

never has been considered a part of the pleading charging a crime. State v. Butler

277 S.C. 452, 290 S.E.2d 1 (1982).

p.16


GRANGER v. STATE OF SOUTH CAROLINA





from 3rd degree CSC to 1st Degree CSC, and increase potential punishment

from 10 to 30 years). More recently, in Clair v. State, 324 S.C. 144, 478

S.E.2d 154 (1996), the defendant was indicted for trafficking in cocaine

weighing more than 100 grams and less than 200 grams. Defense counsel

consented to an amendment of the indictment to an amount more than 200

grams and less than 400 grams. We held the amendment increased the

penalty involved, thereby changing the nature of the offense and depriving

the circuit court of subject matter jurisdiction.

Unlike the above cited cases, the present case does not involve an

amendment to Granger's indictment. The critical difference between Clair

and the present case, and the fundamental flaw in the trial court's holding,

is that Granger's indictment does not state that Granger was charged with

trafficking less than 28 grams of crack. On the contrary, it merely states

he is charged with trafficking more than 10 grams. Under Towery this was

sufficient to put Granger on notice of the charge he had to meet, i.e.,

trafficking. Accordingly, the trial court had subject matter jurisdiction to

accept Granger's plea and, the grant of PCR is



REVERSED.

FINNEY, C.J., TOAL, MOORE, and BURNETT, JJ., concur.

p.17