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2007-UP-548 - State v. Grubbs
THIS OPINION HAS NO PRECEDENTIAL VALUE

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.

Shaun Bradley Grubbs, Appellant.


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


Unpublished Opinion No. 2007-UP-548
Submitted October 1, 2007 – Filed December 12, 2007


APPEAL DISMISSED


Appellate Defender Eleanor Duffy Cleary, South Carolina Commission, of Columbia, for Appellant.

Teresa A. Knox, Deputy Director for Legal Services, Tommy Evans, Jr., Legal Counsel, and J. Benjamin Aplin, Legal Counsel, South Carolina Department of Probation, Parole, and Pardon Services, all of Columbia, for Respondent.

PER CURIAM:  Shaun Grubbs pled guilty to possession with intent to distribute marijuana.  Grubbs was sentenced to one year, suspended to one year probation and community supervision program.  Pursuant to Anders v. California, 386 U.S. 738 (1967), counsel for Grubbs seeks to be relieved.

Grubbs disputes the inclusion of the community supervision program (CSP) in his sentence because he claims he was sentenced for a first offense and thus ineligible for CSP.  The State contends Grubbs was sentenced for a third offense and that the sentence was, therefore, well within statutory parameters.  We are unable to determine with certainty from a review of the record, including the sentencing sheet, whether Grubbs was sentenced for a first offense or a third offense.  The sentencing sheet and indictment, however, tend to support the State’s position that Grubbs was sentenced for a third offense.  We note that a sentence that exceeds the statutory maximum does not implicate subject matter jurisdiction. See State v. Johnston, 333 S.C. 459, 462, 510 S.E.2d 423, 424 (1999) (holding “Defendant’s challenge to the trial court’s sentencing authority does not involve a question of subject matter jurisdiction.”).  Because the argument asserted on this direct review was not presented in the trial court, it is not preserved for review.  Cf. State v. Bennett, 375 S.C. 165, 169, 650 S.E.2d 490, 493 (Ct. App. 2007) (analyzing the avenues available to an inmate who claims his sentence has expired).  This court in Bennett granted relief in a direct appeal where it was determined that the petitioner had served the maximum sentence and was entitled to be released.  Conversely, we are presented with a direct appeal where it is far from certain that Grubbs received a sentence in excess of that authorized by statute.  Further, according to the record, Grubbs is out of jail and his time within the community supervision program has expired.  Accordingly, we find no preserved issue for direct appellate review.

After 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 dismiss this appeal and grant counsel’s petition to be relieved.[1]  The disposition of this direct appeal does not foreclose collateral relief as may be provided by law.

APPEAL DISMISSED.  

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


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