Supreme Court Seal
South Carolina
JUDICIAL DEPARTMENT
Site Map | Feedback
2005-UP-119 - State v. Davis
PROPOSED OPINION

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.

Esau Davis,        Appellant.


Appeal From Dorchester County
Diane Schafer Goodstein, Circuit Court Judge


Unpublished Opinion No.  2005-UP-119
Submitted February 1, 2005 – Filed February 16, 2005


AFFIRMED


Assistant Appellate Defender Robert M. Dudek, Office of Appellate Defense, of Columbia, for Appellant.

Deputy Director for Legal Services Teresa A. Knox,.Legal Counsel Tommy Evans, Jr. and Legal Counsel J. Benjamin Aplin, S.C. Dept. of Probation, all of Columbia, for Respondent.

PER CURIAM:  In this appeal, Esau Davis argues the circuit court lacked jurisdiction to accept a guilty plea and revoke his probation.  We affirm.

FACTS

In August 2002, a Dorchester County grand jury indicted Davis for throwing bodily fluids on a correctional facility employee.  On November 19, 2002, Davis pled guilty to the charge and received a sentence of three years suspended to three years probation.  Davis’s probation was subject to a number of conditions including that Davis would not change residences without the consent of his agent, would pay a supervision fee, and that he would follow the advice and/or instructions of his agent. 

Davis was subsequently charged with violating several conditions of his probation, including those outlined above.  On February 24, 2003, Davis appeared at an administrative hearing to discuss the alleged violations.  At the conclusion of the hearing, an administrative hearing officer completed a report which found that Davis committed several violations of his probation.  In the report, the hearing officer recommended a partial revocation of Davis’s probation for one year and screening for shock incarceration.  The report also noted “For Information Purposes Only: The Subject Has A Pending Charge For Shoplifting 3rd.”  

On April 24, 2003, Davis appeared for a guilty plea/probation revocation hearing.  As the administrative hearing report noted, Davis faced one count of shoplifting, his third offense.  While questioning Davis during the plea proceeding, the court inquired as to whether he was aware that a conviction on the shoplifting charge would violate his probation and expose him to three years in prison.  Davis responded in the affirmative.  Ultimately, the court accepted his guilty plea and imposed a sentence of thirty days with credit for time served.  The court also revoked Davis’s probation in accordance with the administrative hearing officer’s recommendation.  The shoplifting charge was not a factor in the revocation of Davis’s probation.

LAW/ANALYSIS

On appeal, Davis argues his guilty plea and probation revocation should be vacated because he “did not waive grand jury presentment in writing, and his probation was simultaneously revoked with his guilty plea.”  We disagree.

In a criminal case, the circuit court has subject matter jurisdiction to convict a defendant only if: “(1) there has been an indictment which sufficiently states the offense; (2) there has been a waiver of the indictment; or (3) the charge is a lesser-included charge of the crime charged in the indictment.”  Cutner v. State, 354 S.C. 151, 155, 580 S.E.2d 120, 122 (2003).  Furthermore, “[t]he 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. Guthrie, 352 S.C. 103, 107, 572 S.E.2d 309, 311 (Ct. App. 2002) (citing State v. Brown, 351 S.C. 522, 570 S.E.2d 559 (2002)).

In order for a defendant to waive presentment of an indictment, such waiver must be in writing.  S.C. Code Ann. § 17-23-130 & 140 (2003); State v. McNeil, 314 S.C. 473, 475, 445 S.E.2d 461, 462 (Ct. App. 1994); see also Summerall v. State, 278 S.C. 255, 294 S.E.2d 344 (1982) (holding failure to execute written waivers of presentment rendered guilty pleas invalid).

In the present case, it could not be clearer that Davis did execute a written waiver of presentment.  At the beginning of the plea proceeding, the court inquired as to whether Davis was informed of his right to have the matter submitted to a grand jury.  Davis’s counsel answered that he was so informed.  To further ensure Davis knew of his right to grand jury presentment, the trial court provided Davis and defense counsel time to discuss the issue.  After a brief recess, defense counsel explained, “I’ve explained to him his rights as to the grand jury; and he wishes to waive that right.”  The court went on to explain, in detail, the consequences of waiving presentment, and Davis responded that he wished to “waive the presentment and proceed here today.”  At this point, the following colloquy took place:

The Court:  All right, Sir.  And [your intention to waive presentment has] been indicated on the plea sheet where you have signed; is that right? [1]

[Davis]:  Yes, Ma’am.

The Court:  Very well.  So you’ve indicated both orally and in writing that intention; is that right?

[Davis]:  Yes, Ma’am.

Because it is clear from the record that Davis did properly waive presentment in writing, we find his argument to be without merit.  We also note that the shoplifting charge was not a factor the trial court used to revoke Davis’s probation; thus, to the extent Davis argues his probation revocation is invalid because of the alleged errors with the shoplifting charge, we find this argument to be meritless as well.

AFFIRMED. [2]

HEARN, C.J., KITTREDGE, and WILLIAMS, JJ., concur.


[1] The “plea sheet” is in the record, and Davis’s signature is located just below a box that is checked and reads “Defendant Waives Presentment to Grand Jury.” 

[2] We decide this case without oral argument pursuant to Rule 215, SCACR.