THE STATE OF SOUTH CAROLINA
In The Supreme Court
Charles Granger, Jr., Respondent,
State of South
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
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.
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
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.
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
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;
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
imprisonment of twenty-five years, and a fine of fifty thousand
(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).
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
FINNEY, C.J., TOAL, MOORE, and BURNETT, JJ., concur.