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State v. Green1/31/2005
endment procedure that simplistically eliminates original family court jurisdiction offenses, leaving original jurisdiction circuit court offenses. This procedure violates the constitutional and statutory function of the grand jury in South Carolina.
CONCLUSION
Accordingly, the convictions and sentences of Green are
VACATED.
SHORT, J., concurs.
STILWELL, J., dissents in a separate opinion.
STILWELL, J. (dissenting)
I respectfully dissent. The two amendments to the indictment, in my opinion, neither changed the nature of the offense with which Green was charged nor did they otherwise divest the circuit court of subject matter jurisdiction.
The circuit court lacks subject matter jurisdiction to convict a criminal defendant unless the defendant is charged by an indictment sufficiently stating the offense, the offense is a lesser-included offense of the indicted offense, or the defendant waives presentment of his indictment to the grand jury. State v. Wilkes, 353 S.C. 462, 464-65, 578 S.E.2d 717, 719 (2003). An indictment is sufficient where it charges the elements of the offense and sufficiently apprises the defendant of what he must be prepared to meet. Browning v. State, 320 S.C. 366, 368, 465 S.E.2d 358, 359 (1995).
If an indictment contains any defect or there is a "variance between the allegations of the indictment and the evidence offered in proof thereof," the trial court may amend the indictment if the amendment "does not change the nature of the offense charged." S.C. Code Ann. § 17-19-100 (2003). Unless the amendment operates as a surprise entitling the defendant to a continuance on demand, the trial shall proceed as though the indictment had originally been returned in its amended form. Id. Generally, amendments are permitted to correct an error such as a scrivener's error. Cutner v. State, 354 S.C. 151, 155, 580 S.E.2d 120, 122 (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." Id. at 155, 580 S.E.2d at 122-23.
Green contends the second count of the indictment was changed by the amendment at the beginning of trial from an allegation of CSC with a minor in the first degree to CSC with a minor in the second degree. His argument is based solely on the fact the victim was under the age of eleven on the dates originally listed in the indictment. See S.C. Code Ann. § 16-3-655(1), (2) (2003). However, both before and after the amendment, the allegation was that Green committed a sexual battery on the victim who was between the age of eleven and fourteen years old. The fact the victim was not yet eleven on the dates originally included in the indictment was a mere scrivener's error the amendment, by design, corrected. The amendment did not change the nature of the offense. See State v. McRae, 222 S.C. 194, 199, 72 S.E.2d 451, 453 (1952) (holding amendment changing the date of the alleged offense was proper because the amendment did not change the nature of the offense); cf. State v. Pierce, 263 S.C. 23, 27-28, 207 S.E.2d 414, 416 (1974) (noting when the State produces evidence the crime occurred on a date different than the one in the indictment in a case where the accused relies on an alibi defense, it is proper for the court to amend the indictment and then declare a mistrial to allow the defendant to establish an alibi defense for the new date).
As to the first count of the indictment, charging Green with CSC with a minor in the first degree
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