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THE STATE OF SOUTH CAROLINA

In The Supreme Court

Derrick Kernard Hope, Petitioner/Respondent,

v.

State of South Respondent/Petitioner.

Carolina,

ON WRIT OF CERTIORARI

Appeal From York County

Robert L. McFadden, Trial Judge

John C. Hayes, III, Post-Conviction Judge

Opinion No. 24695

Submitted September 18, 1997 - Filed October l3, 1997

REVERSED AND REMANDED

Wanda H. Haile, Senior Assistant Appellate

Defender, South Carolina Office of Appellate

Defense, of Columbia, for petitioner/respondent.

Charles M. Condon, Attorney General, John W.

McIntosh Deputy Attorney General, Teresa A.

Knox, Assistant Deputy Attorney General, and

Matthew M. McGuire, Assistant Attorney General,

all of Columbia, for respondent/petitioner.

WALLER, A.J.: In March 1987, a jury convicted Derrick

Kernard Hope of assault to commit first degree criminal sexual conduct

("CSC") and first degree burglary. He filed for post-conviction relief attacking

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both convictions.1 After an evidentiary hearing, a judge denied relief

regarding Hope's conviction for assault with intent to commit first degree

CSC, and granted relief regarding his conviction for first degree burglary.

This Court granted certiorari.

ISSUES

I. Did the trial court have subject matter jurisdiction over the charge for

which Hope was convicted?

II. Was counsel ineffective in falling to request a jury charge on S.C.

Code Ann. § 16-13-170?

DISCUSSION

I. Subject Matter Jurisdiction

At trial, the judge allowed the State to amend Hope's assault

indictment from assault with intent to commit third degree CSC to assault

with intent to commit first degree CSC. Hope argues this was error. We

agree.

Under S.C. Code Ann. § 17-19-100 (1976), an indictment may be

amended because of a variance in evidence produced at trial only if such

amendment does not change the nature of the offense charged. Clearly, the

amendment here changed the nature of the offense, as we have previously

held. State v. Riddle, 301 S.C. 211, 391 S.E.2d 253 (1990) (amendment of

indictment from assault with intent to commit third degree CSC to assault

initially filed for post-conviction relief on December 14, 1988. After an

evidentiary hearing, a judge denied relief and this application (along with

an amended one dated September 7, 1989) was dismissed on September 7,

1989. On June 24, 1992, Hope filed a subsequent PCR application and

was granted a belated appeal pursuant to Austin v. State, 305 S.C. 453,

409 S.E.2d 395 (1991), because his original PCR counsel failed to perfect

an appeal from the first denial of PCR in 1989. During this appeal, it

was discovered there was no record of Hope's first evidentiary hearing.

We then ordered Hope receive a new evidentiary hearing based on his first

PCR application. Such a hearing was conducted on December 5, 1995. It

is the order resulting from this last evidentiary hearing which is currently

on appeal.

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with intent to commit first degree CSC deprived court of subject matter

jurisdiction).2 Thus, the PCR judge erred in refusing to grant Hope's

application for post-conviction relief on this ground.3 Hope is therefore

entitled to a new trial on this charge.4

II. Lesser Included Offense

The PCR judge found trial counsel ineffective in failing to request a

jury charge on "entering without breaking," holding it is a lesser included

offense of first degree burglary. The State argues this was error. We agree.

"The test for determining when a crime is a lesser included offense of

the crime charged is whether the greater of the two offenses includes all the

elements of the lesser offense. If the lesser offense includes an element not

included in the greater offense, then the lesser offense is not included in the

greater." State v. Bland, 318 S.C. 315, 317, 457 S.E.2d 611, 612 (1995)

(internal citations omitted). First degree burglary is defined, in pertinent

part, as entering "a dwelling without consent and with intent to commit a

the court of subject matter jurisdiction over Defendant's conviction for

assault with intent to commit first degree CSC.

3 The PCR judge found this issue was not properly before him

because it could have been raised on direct appeal. This was clearly an

improper basis on which to deny relief since matters of subject matter

jurisdiction may be raised at any time. Browning v. State, 320 S.C. 366,

460 S.E.2d 358 (1995); Slack v. State, 311 S.C. 415, 429 S.E.2d 801 (1993).

4 We summarily reject the State's argument that all Hope is entitled

to is a sentencing hearing for assault to commit third degree CSC. This

charge was not even submitted to the jury at Hope's trial. Furthermore,

we disagree with the State's contention that a finding of guilt of assault to

commit first degree CSC necessarily indicates a finding of all elements

included in assault to commit third degree CSC. See S.C. Code Ann. §

16-3-652 (1976) (first degree CSC requires proof of either aggravated force

or that victim was also victim of other offense, including burglary); S.C.

Code Ann. § 16-3-654 (1976) (third degree CSC requires proof of either

force or coercion or knowledge that victim is mentally handicapped or

physically helpless). To attempt to second-guess a jury's verdict under the

circumstances of this case would be fundamentally unfair.

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crime in the dwelling." S.C. Code Ann. § 16-11-311 (Supp. 1996). "Entering

without breaking" is defined, in pertinent part, as entering, without breaking,

or attempting to enter any house or vessel, with intent to steal or commit

any other crime. S.C. Code Ann. § 16-13-170 (1976).5

The difference in elements between these two offenses is that under the

former, it must be shown the entering was accomplished without consent,

whereas under the latter, it must be shown the entering was accomplished

without breaking. We find this difference dispositive. In State v. Kirby, ___

S.C. ___, 481 S.E.2d 150 (Ct. App. 1996), the issue was whether unlawful

carrying of a pistol is a lesser included offense of possession of a firearm

during the commission of a violent crime. The Court of Appeals, relying on

precedent from this Court,6 held it was not. It reasoned that one could be

convicted of the greater offense regardless of whether possession of the

weapon was lawful or unlawful, whereas the lesser offense required the

possession to be unlawful. In other words, the greater offense did "not

necessarily, include all of the elements of [the lesser]." 481 S.E.2d at 154.

The same reasoning applies in this case: one can be convicted of first degree

burglary whether or not a breaking occurred (the focal inquiry being whether

entry was made without consent), but to be convicted of the lesser it must be

shown the entering was accomplished without a breaking.7 Because first

degree burglary does not necessarily include all elements of "entering without

breaking," the latter cannot be a lesser included offense.

The PCR judge's finding counsel ineffective for failing to request a

charge on "entering without breaking" is thus without any evidentiary

support. See Clark v. State, ___ S.C. ___, 468 S.E.2d 653 (1996) (rulings of

PCR judge will not be upheld where no evidence exists to support them).

Hope was not charged with this offense, and we now hold it is not a lesser

in this case) to make its violation a felony as opposed to a misdemeanor.

6 In State v. Lawrence, 266 S.C. 423, 223 S.E.2d 856 (1976), this

Court held convictions for both armed robbery and unlawful possession of

a pistol did not violate the Double Jeopardy Clause because proof of armed

robbery only required possession of a weapon, regardless of whether such

possession was lawful or not.

7 A breaking is defined as "any act of physical force, however slight,

whereby any obstruction to entering is forcibly removed." State v. Clamp,

225 S.C. 89, 99, 80 S.E.2d 918, 922 (1954).

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included offense of the crime for which he was charged. See Kirby, 481

S.E.2d at 153 (indictment will sustain a conviction for a lesser offense only

if the lesser offense is included within the greater charged offense).

CONCLUSION

We reverse the PCR judge's denial of relief as to Hope's conviction for

assault to commit first degree CSC. Hope is entitled to a new trial on the

charge of assault to commit CSC because of the trial court's lack of subject

matter jurisdiction over the offense for which he was convicted. Additionally,

we reverse the PCR judge's grant of relief as to Hope's conviction for first

degree burglary. This case is therefore remanded for further proceedings

consistent with this opinion.

REVERSED AND REMANDED.

FINNEY, C.J., Moore and BURNETT, JJ., concur.

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