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THE STATE OF SOUTH CAROLINA

In The Supreme Court

Richard Campbell, Respondent,

v.

State of South Carolina, Petitioner.

ON WRIT OF CERTIORARI

Appeal From Aiken County

Frank Eppes, Trial Judge

Rodney A. Peeples, Post-Conviction Judge

Opinion No. 25183

Submitted May 24, 2000 - Filed August 14, 2000

AFFIRMED

Attorney General Charles M. Condon, Chief Deputy

Attorney General John W. McIntosh, Assistant Deputy

Attorney General Teresa A. Knox, and Assistant Attorney

General Matthew M. McGuire, all of Columbia, for petitioner.

Assistant Appellate Defender Melody J. Brown, of S.C.

Office of Appellate Defense, of Columbia, for respondent.

PER CURIAM: The State appeals the lower court's grant of post-conviction

relief (PCR) to respondent. We affirm in result.

p.495

FACTS

Respondent was indicted for first degree criminal sexual conduct with

a minor for allegedly fondling the seven-year-old daughter of his live-in

girlfriend. He pled guilty to committing a lewd act on a child under the age

of sixteen and was sentenced to fifteen years imprisonment. His subsequent

application for PCR was granted, based on a finding by the PCR court that

respondent's plea was involuntary.

ISSUE

Did the trial court have jurisdiction to accept respondent's plea?

DISCUSSION

Although the issue raised to this Court concerned the voluntariness of

respondent's plea, we affirm the PCR court's grant of relief to respondent

because the trial court did not have subject matter jurisdiction to accept

respondent's plea. Except for certain minor offenses, the circuit court does

not have subject matter jurisdiction to hear a guilty plea unless (1) there has

been an indictment which sufficiently states the offense; (2) there has been a

waiver of indictment; or (3) the charge is a lesser included charge of the

crime charged in the indictment. Carter v. State, 329 S.C. 355, 362, 495

S.E.2d 773, 777 (1998); S.C. Code Ann. § 17-19-10 (1985). Lack of subject

matter jurisdiction may not be waived, and may be raised at any time,

including on this Court's own motion. See Anderson v. Anderson, 299 S.C.

110, 115, 382 S.E.2d 897, 900 (1989).

Here, the grand jury never indicted respondent for the lewd act charge

and respondent did not waive presentment to the grand jury. Committing a

lewd act on a minor is not a lesser included offense of first degree criminal

sexual conduct on a minor. State v. Norton, 286 S.C. 95, 332 S.E.2d 531

(1985); see also S.C. Code Ann. §§ 16-3-655(1) and 16-15-140 (1976 & Supp.

1999). Therefore, the trial court was without jurisdiction to accept

respondent's plea to the unindicted charge.

p. 496

CONCLUSION

Prosecutors must be cautious to ensure that subject matter jurisdiction

is present when a defendant pleads to an unindicted offense. Finding no

subject matter jurisdiction in this case, we AFFIRM the PCR court's grant of

relief to respondent.

p.497