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State v. Green1/31/2005
Heard December 7, 2004
VACATED
Alvin J. Green was convicted of criminal sexual conduct (CSC) with a minor in the first degree and CSC with a minor in the second degree. He contends the trial court lacked subject matter jurisdiction over both offenses. We vacate the convictions and sentences of Green.
FACTUAL/PROCEDURAL BACKGROUND
Green was charged with two counts of CSC with a minor, both stemming from alleged sexual assaults on the same victim. The allegation of CSC with a minor in the first degree concerned events before the victim's eleventh birthday and the second-degree allegation related to a period of time after the victim's eleventh birthday. However, three of the four dates listed in the two-count indictment were off by ten years. At trial, the State moved to amend the indictment to correct the three dates that were ten years earlier than the offenses allegedly occurred. Defense counsel objected to the amendment, but conceded the language in the indictments followed the statute creating the offenses. After a discussion, the trial court allowed the amendment, concluding the dates originally included were scrivener's errors. Green then waived presentment to the amended indictment while purporting to preserve his objection to the amendment itself. After the State rested, the defense noted the first count of the amended indictment (for CSC with a minor in the first degree) contained a time span for the alleged offenses which included dates in which Green was too young to be prosecuted in circuit court as well as dates in which such prosecution was proper. In response, the trial court again amended the first count of the indictment to include only dates in which Green was old enough to be tried as an adult. The jury found Green guilty as charged and the trial court sentenced him to concurrent fifteen-year prison terms.
LAW/ANALYSIS
The Circuit Court does not have subject matter jurisdiction to convict a defendant of an offense unless: (1) there has been an indictment which 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, 564 S.E.2d 103 (2002); State v. Guthrie, 352 S.C. 103, 572 S.E.2d 309 (Ct. App. 2002). An indictment is sufficient to convey jurisdiction if it apprises the defendant of the elements of the offense intended to be charged and informs the defendant of the circumstances he must be prepared to defend. Koon v. State, 358 S.C. 359, 595 S.E.2d 456 (2004). The acts of a court with respect to a matter as to which it has no jurisdiction are void. Guthrie, 352 S.C. at 107, 572 S.E.2d at 312.
Under section 17-19-100 of the South Carolina Code, if an indictment contains any defect or, "on the trial of any case there shall appear to be any variance between the allegations of the indictment and the evidence offered in proof thereof," the trial court "may amend the indictment . . . if such amendment does not change the nature of the offense charged." S.C. Code Ann. ยง 17-19-100 (2003). "After such amendment the trial shall proceed in all respects and with the same consequences as if the indictment had originally been returned as so amended, unless such amendment shall operate as a surprise to the defendant, in which case the defendant shall be entitled, upon demand, to a continuance of the cause." Id. The appropriate analysis for determining whether an amendment to an indictment deprives the trial court of subject matter jurisdiction is whether the amendment changed the nature of the offense charged, not whether the amendment in any way surprised or prejudiced
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