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2004-UP-223 - State v. Bruce

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.

Keith B. Bruce,        Appellant.


Appeal From Oconee County
Alexander S. Macauley, Circuit Court Judge


Unpublished Opinion No. 2004-UP-223
Submitted January 29, 2004 – Filed March 30, 2004


REMANDED


E. Delane Rosemond, of Seneca, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Charles H. Richardson, Senior Assistant Attorney General Harold M. Coombs, all of Columbia; and Solicitor Druanne D. White, of Anderson, for Respondent.


PER CURIAM:  Keith B. Bruce was convicted of distribution of marijuana and distribution of marijuana within the proximity of school.  Subsequently, the circuit court sentenced him to ten years imprisonment for distribution of marijuana and fifteen years imprisonment for distribution of marijuana within the proximity of a school, the sentences to run concurrently.  Bruce appeals, arguing the circuit court erred by denying his motion for directed verdict.  We remand with instructions.

FACTUAL/PROCEDURAL BACKGROUND

Bruce was indicted for distribution of marijuana and distribution of marijuana within the proximity of a school.  Subsequently, a jury convicted him on both charges, and the circuit court sentenced him to ten years imprisonment for distribution of marijuana and fifteen years imprisonment for distribution of marijuana within the proximity of a school, the sentences to run concurrently.  Bruce appeals.

LAW/ANALYSIS

Bruce argues the circuit court erred by denying his motion for directed verdict.  We do not reach this issue, as we remand this case for a determination of whether the grand jury true billed his indictments.

The jurisdiction of a court over the subject matter of a proceeding is fundamental.  Brown v. State, 343 S.C. 342, 346, 540 S.E.2d 846, 848 (2001).  Thus, the 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.  State v. Brown, 351 S.C. 522, 525-26, 570 S.E.2d 559, 560 (Ct. App. 2002). 

The circuit court lacks subject matter jurisdiction to convict a defendant of an offense unless: 1) there has been an indictment that sufficiently states the offense; 2) the defendant has waived presentment of the indictment; or 3) the offense is a lesser-included offense of the crime charged in the indictment.  State v. Primus, 349 S.C. 576, 579, 564 S.E.2d 103, 105 (2002).  

When the action of the grand jury is not written on the indictment, and evidence does not exist within the record to indicate the action of the grand jury, an appellate court must remand the case to the circuit court for a determination of whether the indictment was true billed.  See State v. Grim, 341 S.C. 63, 67, 533 S.E.2d 329, 330 (2000) (holding where grand jury foreman signed and dated the indictment but failed to state the action of the grand jury, the appropriate remedy was to remand the case to the circuit court for a determination of whether the grand jury true billed the indictment); Anderson v. State, 338 S.C. 629, 633, 527 S.E.2d 398, 400 (Ct. App. 2000) (same).  Furthermore, upon remand, the State bears the burden of proving subject matter jurisdiction.  See Id.

In the present case, the grand jury foreman signed and dated both indictments.  However, no action of the grand jury is stamped or written on either indictment.  Furthermore, no evidence exists within the record indicating the action of the grand jury.  Thus, we remand the case for a hearing on whether the circuit court was properly vested with subject matter jurisdiction during Bruce’s trial. At the hearing, the State shall bear the burden of proving subject matter jurisdiction.

CONCLUSION

For the foregoing reasons, this case is REMANDED to the circuit court, and the appeal is stayed pending resolution of this matter.

GOOLSBY, HOWARD, and KITTREDGE, JJ., concurring.