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2011-UP-463 - State v. Rogers

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

State of South Carolina, Respondent,

v.

Rebekah Rogers, Appellant.


Appeal from Florence County
Michael G. Nettles, Circuit Court Judge


Unpublished Opinion No.  2011-UP-463 
Heard September 14, 2011 – Filed October 19, 2011


AFFIRMED


Patrick James McLaughlin, for Appellant.

Attorney General Alan Wilson, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Senior Assistant Attorney General Harold Coombs, of Columbia, for Respondent.

PER CURIAM: A municipal court jury found Rebekah Rogers guilty of shoplifting.  Rogers appealed to the Florence County Court of Common Pleas, which affirmed the conviction.  We affirm.

1. As to Rogers' argument that a uniform traffic ticket was insufficient to confer jurisdiction on the municipal court to try the shoplifting charge, we hold that it was incumbent on her to raise this issue before the jury was sworn in order to preserve this issue for appeal.  See State v. Gentry, 363 S.C. 93, 101, 610 S.E.2d 494, 499 (2005) ("[I]f an indictment is challenged as insufficient or defective, the defendant must raise that issue before the jury is sworn and not afterwards."); id. at 106, 610 S.E.2d at 501 (expressly overruling Odom v. State, 350 S.C. 300, 566 S.E.2d 528 (2002), wherein the South Carolina Supreme Court held that the absence of a charging document could not be cured by an oral waiver of presentment during a guilty plea). 

2. As to the merits of whether service of the uniform traffic ticket on Rogers conferred jurisdiction on the municipal court to try her on the shoplifting charge, we hold that notwithstanding the requirement in South Carolina Code section 22-3-710 (2007) that "[a]ll proceedings before magistrates in criminal cases shall be commenced on information under oath, plainly and substantially setting forth the offense charged, upon which, and only which, a warrant of arrest [shall] issue," the South Carolina legislature has conferred authority on the summary courts to dispose of criminal matters such as the shoplifting charge at issue in this appeal.  See S.C. Code Ann. § 14-25-45 (Supp. 2010) ("The [municipal] court shall also have all such powers, duties and jurisdiction in criminal cases made under state law and conferred upon magistrates."); S.C. Code Ann. § 16-13-110 (2003) (stating a shoplifting charge is triable in magistrate's court "if the value of the shoplifted merchandise is one thousand dollars or less")[1]; S.C. Code Ann. § 56-7-10 (2006 & Supp. 2010) (omitting shoplifting from a list of offenses for which a uniform traffic ticket is required to effect an arrest, but also providing that "[t]he service of the uniform traffic ticket shall vest all traffic,  recorders', and magistrates' courts with jurisdiction to hear and dispose of the charge for which the ticket was issued and served"); S.C. Code Ann. § 56-7-15 (2006 & Supp. 2010) (allowing law enforcement to use a uniform traffic ticket "to arrest a person for an offense committed in the presence of a law enforcement officer if the punishment is within the jurisdiction of magistrates court and municipal court").

3. Regarding Rogers' complaints that the circuit court erred in finding that the State complied with the requirement in section 56-7-15(A) of the South Carolina Code (2006) to furnish certain information to the State Law Enforcement Division and that this alleged error resulted in an improper conclusion that the prerequisites for subject matter jurisdiction were met, we hold that because these issues were not raised during the municipal court proceedings, they were not preserved for appeal.  See State v. Oxner, 391 S.C. 132, 134, 705 S.E.2d 51, 52 (2011) ("Even though subject matter jurisdiction may be raised at anytime [sic], there is no error preservation exception allowing a party to bypass calling an erroneous ruling to the attention of the tribunal making it before appealing that ruling to a higher court.").

4. As to Rogers' argument that section 56-7-15 is unconstitutional because it allows an arrest without the presentation of information under oath, we hold Rogers has not preserved this issue for appeal because it was not made during the municipal court hearing.  See State v. Sheppard, 391 S.C. 415, 423, 706 S.E.2d 16, 20 (2011) (holding the defendant's argument that a statute was an unconstitutional ex post facto law was not preserved for appellate review because it was not raised during the proceedings below).  In any event, based on the arresting officer's testimony about his observations that indicated to him Rogers was attempting to conceal merchandise in order to avoid paying for it, we hold the arrest was proper.  See State v. Martin, 275 S.C. 141, 145, 268 S.E.2d 105, 107 (1980) (stating an officer can "arrest for a misdemeanor, without a warrant, where the facts and circumstances within his observation give him probable cause to believe that the crime has been freshly committed").

AFFIRMED.

FEW, C.J., THOMAS and KONDUROS, JJ., concur.



[1]  Section 16-13-110 was amended in 2010; however, the incident and subsequent trial took place in 2009.