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2005-UP-554 - State v. McColl

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.

Larry McColl, Appellant.


Appeal From Marlboro County
John M. Milling, Circuit Court Judge


Unpublished Opinion No. 2005-UP-554
Submitted October 1, 2005 – Filed October 17, 2005   


AFFIRMED


Acting Deputy Chief Attorney Wanda H. Carter, Office of Appellate Defense, of Columbia, for Appellant.

Attorney General Henry D. McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Sr. Assistant Attorney General Harold M. Coombs, Jr., Office of the Attorney General, all of Columbia; and Solicitor Jay E. Hodge, Jr., of Cheraw, for Respondent.

PER CURIAM:  In May 2003, Larry McColl pled guilty to several charges, including two counts of distribution of marijuana within a half mile of a school.  McColl’s appellate counsel filed an Anders brief, attaching to the brief a petition to be relieved as counsel stating that she had reviewed the record and concluded the appeal lacked merit.  This court denied the petition to be relieved and ordered the parties to brief the issue of whether the plea court had subject matter jurisdiction to accept appellant’s guilty plea to two counts of distribution of marijuana within a half mile of a school where the indictments alleged distribution within the proximity of “St. Paul’s Kindergarten.”  We now affirm pursuant to Rule 220(b), SCACR and the following authorities:  State v. Gentry, 363 S.C. 93, 101, 610 S.E.2d 494, 499 (2005) “subject matter jurisdiction of the circuit court and the sufficiency of the indictment are two distinct concepts … if an indictment is challenged as insufficient or defective, the defendant must raise that issue before the jury is sworn and not afterwards.” 

AFFIRMED.1

ANDERSON, HUFF, and WILLIAMS, JJ., concur.


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