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State v. Green1/31/2005
the defendant. State v. Lynch, 344 S.C. 635, 545 S.E.2d 511 (2001).
Generally, amendments are permitted for the purpose of correcting an error of form, such as a scrivener's error. Cutner v. State, 354 S.C. 151, 580 S.E.2d 120 (2003). Otherwise, if the defendant objects to an amendment on grounds that the amended indictment would change the nature of the offense, the trial judge is obligated to inform the parties of the necessity of reindictment or obtain a waiver of presentment from the defendant. Hopkins v. State, 317 S.C. 7, 451 S.E.2d 389 (1994).
"Critical determinations to be made by a court when confronted with the issue of amending the date alleged in an indictment is always whether the amendment alters the nature of the offense charged and surprises the accused, preventing a fair trial." State v. Quarles, 261 S.C. 413, 417, 200 S.E.2d 384, 385 (1973). "A motion to amend the date alleged in an indictment is addressed to the sound discretion of the trial judge, and the burden of showing an abuse of discretion and resulting prejudice is upon the party adversely affected by his ruling thereon." Id. at 417, 200 S.E.2d at 386.
The indictment as crafted by the drafter reveals a date deficiency. The dates contained in the indictment presented to the grand jury apply to a two-year-old defendant and an unborn victim. At a minimum, the indictment is fatally flawed in regard to an identification and articulation of criminal sexual conduct charges.
Initially, the State moved to amend the indictment to change the dates of the alleged offenses to a current era. After granting the amendment, the court was confronted with charges against the defendant which could not be tried in the circuit court because of the age of the defendant, i.e., under the age of sixteen. The court redacted the indictment by extirpating certain dates contained in the indictment relating to the defendant's being under the age of sixteen.
We decline to place our approbation and imprimatur upon the subject matter juxtaposition between the family court and the circuit court. The prosecutorial endeavors are not efficacious. Approval of the amendment activities and rulings in the case under the rubric and guise of salutary and salubrious amendments flies in the face of the grand jury and indictment procedure enunciated in the South Carolina Constitution and applicable statutes.
No precedent is cited in approving the amendatory activities involving the indictment in this case. The indictment moves through a peripatetic journey from the circuit court to the family court and back to the circuit court as finally amended.
The gravamen of our conclusion rests upon the efficacy of sections 20-7-400 and 20-7-7605 of the South Carolina Code. Section 20-7-400, titled "Exclusive original jurisdiction of family court," states:
(A) Except as otherwise provided herein, the court shall have exclusive original jurisdiction and shall be the sole court for initiating action:
(3) Concerning any child seventeen years of age or over, living or found within the geographical limits of the court's jurisdiction, alleged to have violated or attempted to violate any State or local law or municipal ordinance prior to having become seventeen years of age and such person shall be dealt with under the provisions of this chapter relating to children.
S.C. Code Ann. § 20-7-400 (1985 & Supp. 2003) (emphasis added). Under the Children's Code, the general sessions court ordinarily lacks jurisdiction over individuals under the age of seventeen, with certain exceptions. See S.C. Code Ann. § 20-7-7605 (Supp. 2003). Section 20-7-7605 reads in pertinent part
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