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3090 - State v. Tate
State v. Tate

THE STATE OF SOUTH CAROLINA
In The Court of Appeals
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The State, Respondent,

v.

James C. Tate, Appellant.

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Appeal From Clarendon County
M. Duane Shuler, Circuit Court Judge
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Opinion No. 3090
Submitted November 2, 1999 - Filed December 13, 1999
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AFFIRMED
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Assistant Appellate Defenders Robert M. Pachak and Tara S. Taggart, both of SC Office of Appellate Defense, of Columbia, for appellant.

Attorney General Charles M. Condon, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott and Assistant Attorney General Caroline Callison Tiffin, all of Columbia; and Solicitor Arthur H. Wilder, Jr., of Sumter, for respondent.

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HEARN, J.: James C. Tate contends the circuit court lacked subject matter jurisdiction to accept his guilty pleas where the indictments had not been true-billed and Tate did not sign a written waiver of presentment until the day of his sentencing hearing, over fifty days after Tate originally pled guilty. We affirm.(1)

After conducting an ongoing investigation into repeated motor vehicle break-ins in both Clarendon and Sumter Counties, investigators raided the house where Tate was living and found $20,000 to $30,000 in stolen goods. Tate admitted breaking into the motor vehicles and fully cooperated with investigators by providing information leading to the resolution of several related crimes.

The Clarendon County grand jury indicted Tate on five counts of breaking into a motor vehicle and five counts of grand larceny with indictment 93-GS-14-197.(2) At an April 13, 1993 hearing, Tate pled guilty to all charges in the indictment.

During the April 13th hearing, the State brought another indictment, 93-GS-14-214, for three counts of breaking into a motor vehicle and three counts of grand larceny. Indictment 93-214 had not been presented to the grand jury. Tate orally waived his right to presentment and pled guilty to the charges contained in indictment 93-214. The circuit judge found Tate had freely and voluntarily entered his guilty plea. The circuit judge then adjourned the hearing until the following day.

The following day, April 14, 1993, the State presented a Sumter County indictment, 93-GS-43-522, for six counts of breaking into a motor vehicle and six counts of grand larceny. Indictment 93-522 had not been presented to the grand jury. Tate orally waived his right to presentment, consented to a transfer of venue from Sumter County to Clarendon County, and pled guilty to the charges contained in indictment 93-522. The circuit judge found Tate had freely and voluntarily entered his guilty plea.

Sentencing was deferred on all three indictments to allow Tate to assist law enforcement in another matter. On June 4, 1993, the day the sentencing hearing commenced, it appears that Tate signed a written waiver of presentment for indictments 93-214 and 93-522.(3) The circuit judge sentenced Tate to consecutive three year sentences on each count of breaking into a motor vehicle and concurrent ten year sentences for each count of grand larceny contained in indictments 93-214 and 93-522.

The supreme court affirmed Tate's conviction. State v. Tate, Op. No. 95-MO-180 (S.C. Sup. Ct. filed April 12, 1995). Tate then filed a petition for post-conviction relief (PCR). The circuit judge who presided over the PCR hearing reversed Tate's sentence on unrelated grounds. At a re-sentencing hearing, Judge Shuler imposed the same sentence as originally issued. Tate appeals.(4)

DISCUSSION

Tate contends the circuit court lacked subject matter jurisdiction to accept his guilty pleas. Specifically, Tate asserts a defendant must sign a written waiver of presentment before a circuit judge may hear a guilty plea and, because Tate signed the waivers of presentment at his sentencing hearing, on June 4, 1993, but entered his guilty plea on April 13, 1993, the circuit court lacked subject matter jurisdiction. See Carter v. State, 329 S.C. 355, 362, 495 S.E.2d 773, 777 (1998) ("Issues related to subject matter jurisdiction may be raised at any time."). We disagree.

Generally, where an indictment has not been presented to the grand jury, a circuit court does not have subject matter jurisdiction to hear a guilty plea unless there has been a waiver of presentment. Carter, 329 S.C. at 362, 495 S.E.2d at 777; State v. Clarkson, Op. No. 3069 (S.C. Ct. App. filed November 8, 1999) (Shearouse Adv. Sheet No. 34) (requiring a defendant to sign a written waiver of presentment before pleading guilty to an indictment not presented to the grand jury); see also 17-23-130 (1985) ("[T]he clerk shall have the defendant sign a waiver of the presentment by the grand jury and his plea of guilty."); S.C. Code Ann. ยง 17-23-140 (1985) (stating that "[u]pon the defendant's signing the waiver of presentment and the plea of guilty . . . [a]nd upon the defendant's acknowledging his plea before the judge[,] the judge shall sentence the defendant as though the indictment had been presented by the grand jury and the plea of the defendant taken at the regular term of the court of general sessions of the county in which the case arose.").

The South Carolina Supreme Court has strictly construed the requirement of a signed, written waiver of presentment. State v. McNeil, 314 S.C. 473, 475, 445 S.E.2d 461, 462 (Ct. App. 1994). However, the seminal case dealing with a waiver of presentment is unclear as to exactly when the written waiver must be signed. See Summerall v. State 278 S.C. 255, 256, 294 S.E.2d 344, 344 (1982). In Summerall, the supreme court stated a defendant must sign a written waiver of presentment "before pleading guilty" but later stated a defendant must sign a written waiver "before the trial judge can accept the plea." 278 S.C. at 256, 294 S.E.2d at 344 (emphasis added).

In criminal proceedings generally, a judgment is not final until a sentence has been imposed. See Parsons v. State, 289 S.C. 542, 347 S.E.2d 504 (1986) ("A criminal defendant may not appeal until sentenced."); State v. Robinson, 287 S.C. 173, 337 S.E.2d 204 (1985) (noting that judgment in a criminal case is not final until a sentence is imposed); State v. Washington, 285 S.C. 457, 458, 330 S.E.2d 289 (1985) ("A criminal conviction is not final for purposes of appeal until after sentence is imposed. So long as the sentence remains sealed, no appeal can be taken."); State v. Clifford, 335 S.C. 129, 131, 515 S.E.2d 550, 551 (Ct. App. 1999) ("Where sentencing of the defendant remains to be done, there has been no final judgment."); Reed v. Becka, 333 S.C. 676, 681, 511 S.E.2d 396, 399 (Ct. App. 1999) ("A criminal defendant may not appeal until sentence is imposed.").

We find this general proposition equally applicable to guilty pleas and hold a defendant's guilty plea is not final until the circuit judge accepts the plea and imposes a sentence. Therefore, we hold a waiver of presentment is valid where the defendant signs a written waiver of presentment before the judge finally accepts the guilty plea, i.e., before the judge imposes a sentence. See Robinson, 287 S.C. at 173, 337 S.E.2d 204 (noting that judgment in a criminal case is not final until a sentence is imposed); Clifford, 335 S.C. at 131, 515 S.E.2d at 551 ("Where sentencing of the defendant remains to be done, there has been no final judgment.").

In the present case, Tate's guilty pleas were not final until the circuit judge sentenced Tate at the June 4, 1993 hearing. Therefore, the signed, written waivers of presentment, and Tate's corresponding guilty pleas, were valid because Tate signed the waivers on the date of the sentencing hearing, in this case June 4, 1993. Therefore, Tate appropriately waived his right to presentment and Tate's guilty pleas are

AFFIRMED.

HOWELL, C.J., AND GOOLSBY, JJ., concur.

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

2. The State dropped a possession of crack cocaine charge apparently included in the 93-197 indictment. The indictment is not contained in the record and is not an issue on appeal.

3. The State asserts that Tate actually signed the waivers of presentment on the dates he entered his guilty pleas, April 13-14, and that "June 4, 1993" was stamped over the original date at the sentencing hearing. However, this assertion is not definitively borne out in the record before us. Thus, for the purpose of this appeal, we assume Tate did not sign the waivers until June 4, 1993.

4. On September 5, 1997, Tate filed a pro se writ of habeas corpus brief under the supreme court's original jurisdiction contending, inter alia, Judge Shuler lacked subject matter jurisdiction to accept Tate's guilty plea. The supreme court dismissed Tate's petition. Tate now appeals from Judge Shuler's re-sentencing order.