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THE STATE OF SOUTH CAROLINA

In The Supreme Court

The State, Respondent,

v.

Karen L. Johnston, Petitioner.

ON WRIT OF CERTIORARI TO THE COURT OF

APPEALS

Appeal From Newberry County

E.C. Burnett, III, Circuit Court Judge

Opinion No. 24874

Heard November 5, 1998 - Filed January 4, 1999

REVERSED AND REMANDED

Assistant Appellate Defender M. Anne Pearce, of

South Carolina Office of Appellate Defense, of

Columbia, for petitioner.

Attorney General Charles Molony Condon; Deputy

Attorney General John W. McIntosh; Assistant

Deputy Attorney General Salley W. Elliott; Assistant

Attorney General Caroline Callison Tiffin, all of

Columbia; and Solicitor W. Townes Jones, IV, of

Greenwood, for respondent.

TOAL, A.J.: In this criminal case, we granted certiorari to

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review the Court of Appeals opinion in State v. Johnston, 327 S.C. 435, 489

S.E.2d 228 (Ct. App. 1997). We reverse and remand.

FACTUAL/PROCEDURAL BACKGROUND

Karen Johnston ("Defendant") was convicted of possession of marijuana

and conspiracy to possess marijuana with the intent to distribute. For the

simple possession conviction, Defendant was sentenced to one year in prison

and a fine of $2,000. For the conspiracy conviction, Defendant was sentenced

to ten years in prison and a fine of $10,000. Defendant raised no objections

at trial to the sentence imposed by the trial court.

On direct appeal, Defendant for the first time questioned the trial

court's authority to impose a prison sentence of ten years for her conspiracy

conviction. Defendant argued this issue could be raised for the first time on

appeal because the trial court exceeded its subject matter jurisdiction by

rendering a sentence exceeding the maximum allowed by law. In an

unpublished opinion, the Court of Appeals affirmed Defendant's conviction

pursuant to Rule 220(b), SCACR.1 The Court of Appeals subsequently

granted Defendant's petition for rehearing and substituted its unpublished

opinion with a published opinion. In State v. Johnston, 327 S.C. 435, 489

S.E.2d 228 (Ct. App. 1997), the Court of Appeals again affirmed Defendant's

conviction and sentence. The court found that while the trial court's ten year

sentence for Defendant's conspiracy conviction exceeded the maximum allowed

by law, this issue was not preserved for direct appeal because an objection

was not raised to the trial court. Furthermore, the issue did not involve a

question of the trial court's subject matter jurisdiction and therefore could not

be raised for the first time on appeal.

This Court granted Defendant's petition for a writ of certiorari to

consider the following issue:

Whether the Court of Appeals erred in holding that a challenge

to an excessive sentence is not a matter of subject matter

jurisdiction, but must be preserved for appellate review by motion

or objection?

1 State v. Johnston, 96-UP-229 (Ct. App. filed July 29, 1996).

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Defendant argues that the Court of Appeals erred in holding that the

trial court's imposition of an excessive sentence for Defendant's conspiracy

conviction did not involve a question of subject matter jurisdiction. We

disagree.

In this case, Defendant was convicted of conspiracy to possess

marijuana with the intent to distribute. Pursuant to S.C. Code Ann. § 44-53-

420 (1985), the maximum sentence for the conspiracy conviction is one-half

the penalty for the substantive offense. The substantive offense, possession

with intent to distribute, carries a maximum penalty of ten years for a

second offense. S.C. Code Ann. § 44-53-370(b)(2) (Supp. 1997). This offense

was Defendant's second. Therefore, the maximum sentence that the court

could impose for this offense is five years. The trial court sentenced

Defendant to ten years in prison. Defendant never raised an objection to the

trial court.

The question is whether a challenge to a sentence as exceeding the

statutory limit involves a question of the trial court's subject matter

jurisdiction so that it can be raised for the first time on appeal. See Carter

v. State, 329 S.C. 355, 495 S.E.2d 773 (1998)(issues related to subject matter

jurisdiction may be raised at any time, including for the first time on appeal).

We find that Defendant's challenge to the trial court's sentencing authority

does not involve a question of subject matter jurisdiction.

Generally, in a criminal case, the trial court acquires subject matter

jurisdiction by way of a valid indictment. State v. Beachum, 288 S.C. 325,

342 S.E.2d 597 (1986). In other words, a court lacks subject matter

jurisdiction to convict and sentence a defendant for an offense for which he

was not indicted. Id. In addition, an amendment to an indictment during

trial that changes the nature of the offense charged deprives the trial court

of subject matter jurisdiction. See Clair v. State, 324 S.C. 144, 478 S.E.2d

54 (1996)(holding that an amendment that increases the penalty changes the

nature of the offense and therefore deprives the court of subject matter

jurisdiction); Hopkins v. State, 317 S.C. 7, 451 S.E.2d 389 (1994). Thus, a

determination of whether a defendant was convicted and sentenced for a

crime for which he was not indicted involves a question of subject matter

jurisdiction and, therefore, can be raised for the first time on appeal.

On the other hand, this Court has consistently held that a challenge

to sentencing must be raised at trial, or the issue will not be preserved for





p.9

v. Shumate, 276 S.C. 46) 275 S.E.2d 288 (1981); State v. Winestock, 271 S.C.

473, 248 S.E.2d 307 (1978). Moreover, this Court, in discussing error

preservation, has specifically distinguished a trial court's sentencing authority

from its subject matter jurisdiction. See State v. Walker, 252 S.C. 325, 166

S.E.2d 209 (1969). In Walker, the defendant was sentenced for resisting

arrest and assault and battery of a high and aggravated nature. The

defendant argued that his acts of resisting arrest and assault and battery

were inseparable from each other and constituted identical acts; hence, it was

error for the trial court to sentence him to a single general sentence on

separate counts in the indictments, charging separate offenses. This Court

held that since this issue was not raised below and did not involve subject

matter jurisdiction, the defendant was not entitled to have the issue

considered for the first time on appeal. Since Walker, South Carolina courts

have continued to recognize a distinction between a trial court's sentencing

authority and its subject matter jurisdiction. See State v. Salisbury, 330 S.C

. 250, 498 S.E.2d 655 (Ct. App. 1998); State v. Bynes, 304 S.C. 62, 403 S.E.2d

126 (Ct. App. 1991).

In this case Defendant argues that her challenge to the trial court's

sentence involves a question of subject matter jurisdiction because the trial

court sentenced Defendant for an offense for which she was not indicted.

However, the record makes clear that the trial court sentenced Defendant for

conspiracy, a crime for which Defendant was indicted and convicted. It

appears simply that the trial court exceeded its statutory authority in

sentencing Defendant for this crime.2 To adopt Defendant's position would

mean that a challenge to sentencing could automatically be transformed into

a question of subject matter jurisdiction simply by alleging that the trial

court based its sentencing authority on some other unindicted offense. We

therefore agree with the Court of Appeals that the issue presented in this

case does not involve a question of the trial court's subject matter

jurisdiction.

However, this case presents the exceptional circumstance in which the

exceeding authorized limits is a matter involving subject matter jurisdiction:

State v. Fowler, 277 S.C. 472, 289 S.E.2d 412 (1982); State v. Storgee, 277

S.C. 412, 288 S.E.2d 397 (1982); State v. Swaringen, 275 S.C. 509, 273 S.E.2d

339 (1980); State v. Bass, 242 S.C. 193, 130 S.E.2d 481 (1963). However,

none of these cases addressed error preservation. Thus, they provide no

support for Defendant's position here.

p. 10

State has conceded in its briefs and oral argument that the trial court

committed error by imposing an excessive sentence. The State nevertheless

contends that Defendant's appropriate remedy is through the Post Conviction

Relief Act. Yet, if this Court unyieldingly enforces PCR as the only avenue

of relief in this case, there is the real threat that Defendant will remain

incarcerated beyond the legal sentence due to the additional time it will take

to pursue such a remedy. Under these exceptional circumstances, we hold

that this case should be remanded for resentencing.3

CONCLUSION

Based on the foregoing, the Court of Appeals is REVERSED and the

case REMANDED for resentencing.

FINNEY, C.J., MOORE, WALLER, JJ., and Acting Associate Justice

George T. Gregory, Jr., concur.

preservation and PCR applications. The facts here are unique and demand

an expedited result.

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