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2004-UP-203 - State v. Maddox

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.

Sean Maddox,        Appellant.


Appeal From Richland County
G. Thomas Cooper, Jr., Circuit Court Judge


Unpublished Opinion No. 2004-UP-203
Submitted January 29, 2004 – Filed March 24, 2004


DISMISSED IN PART, VACATED IN PART


Assistant Appellate Defender Eleanor Duffy Cleary,  S.C. Office of Appellate Defense, of Columbia, for Appellant.

Attorney General Henry D. McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Charles H. Richardson, all of Columbia; and Solicitor Warren Blair Giese, of Columbia, for Respondent.

PER CURIAM:  Sean Maddox (Appellant) pled guilty to second-degree criminal sexual conduct (CSC) with a minor and pointing and presenting a firearm.  He was sentenced to concurrent prison terms of ten years for the CSC offense and three years for the firearm offense.

On appeal, counsel for Appellant has filed a final brief along with a petition to be relieved as counsel.  Appellant has not filed a pro se response.  After a thorough review of the record pursuant to Anders v. California, 386 U.S. 738 (1967) and State v. Williams, 305 S.C. 116, 406 S.E.2d 357 (1991), we found the transcript of the plea proceedings indicated Appellant had orally waived presentment of the indictments to a grand jury, but the indictments in the record were left blank in the section for waiving presentment.  There were no written waivers of presentment elsewhere in the record.  See State v. Lynch, 344 S.C. 635, 639, 545 S.E.2d 511, 513 (2001) (“A circuit court has subject matter jurisdiction if:  (1) there has been an indictment which sufficiently states the offense; (2) there has been a waiver of indictment; or (3) the charge is a lesser included charge of the crime charged in the indictment.”); In re Matthews, 345 S.C. 638, 643 n.4, 550 S.E.2d 311, 313 n.4 (2001) (“Lack of subject matter jurisdiction can be raised at any time, can be raised for the first time on appeal, and can be raised sua sponte by the court.” (citation omitted)), cert. denied, 535 U.S. 1062 (2002).

As part of its Anders review, the Court obtained the sentencing sheets on the two charges.  There is a written waiver of presentment on the sentencing sheet for the charge of pointing and presenting a firearm.   Accordingly, the appeal as to this charge is dismissed.  As to the charge of second-degree CSC with a minor, the sentencing sheet does not contain a written waiver of presentment.  Consequently, we vacate the conviction on the CSC charge as the circuit court did not have subject matter jurisdiction to accept Appellant’s plea.  See Odom v. State, 350 S.C. 300, 566 S.E.2d 528 (2002) (holding section 17-23-140 of the South Carolina Code requires a waiver of presentment to be in writing and a defendant’s oral waiver is insufficient to bestow subject matter jurisdiction).

Counsel’s petition to be relieved from further representation is denied.

DISMISSED IN PART, VACATED IN PART. [1]

GOOSLBY, HOWARD, and KITTREDGE, JJ., concur.


[1]   This case is decided without oral argument pursuant to Rule 215, SCACR.