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THE STATE OF SOUTH CAROLINA

In The Supreme Court

Raymond Weinhauer, Petitioner,

v.

State of South Carolina, Respondent.

Appeal From Sumter County

David F. McInnis, Circuit Court Judge

Thomas W. Cooper, Jr., Post-Conviction Judge

Opinion No. 24909

Submitted January 21, 1999 - Filed March 1, 1999

REVERSED

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; and Assistant Deputy Attorney

General Teresa A. Knox, all of Columbia; Assistant Attorney

General Barbara M. Tiffin, of Greenville, for respondent.

TOAL, A.C.J.: In this application for post-conviction relief ("PCR"), the

PCR court dismissed petitioner's case. We reverse.

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FACTUAL/PROCEDURAL BACKGROUND

On January 4, 1994, a Sumter County grand jury indicted petitioner

Raymond Weinhauer, Jr., for numerous criminal offenses including first and

second degree burglary. On January 28, 1994, petitioner pleaded guilty to

several counts in the indictment including two counts of second degree burglary.

Count six of the indictment, as presented to the grand jury, stated:

Burglary -- First Degree -- That one RAYMOND WARREN

WEINHAUER, JR. did in Sumter County on or about October 26,

1992, wilfully and unlawfully enter the dwelling of Scott Stone

without consent and with intent to commit a crime therein, and the

defendant entered or remained therein in the nighttime.

Count eight of the indictment stated:

Burglary -- Second Degree -- That one CHARLES ANTHONY

OWENS and one RAYMOND WARREN WEINHAUER, JR. did in

Sumter County between November 13 and November 16, 1992,

wilfully and unlawfully enter the dwelling of James S. Cofer at

Huntington Place Apartments without consent and with intent to

commit a crime therein.

At the guilty plea proceeding, the solicitor orally amended the indictment,

stating: "On the indictment on count six, it says burglary first degree. My

investigation of the facts determined that that is not in fact a burglary first

degree. It is a burglary second degree. It is a house in the daytime and he is

pleading to a nonviolent on that. Count eight does not say it is a nighttime

burglary but it is, and he is pleading guilty to a nighttime burglary on that as

a violent crime." Petitioner's attorney made no objection. Petitioner did not

appeal.

On July 18, 1994, petitioner filed an application for PCR. Following an

evidentiary hearing, the PCR court dismissed petitioner's application. In

February 1997, petitioner sought from this Court a writ of certiorari to consider

the following issue:

Whether the trial judge lacked subject matter jurisdiction to convict

and sentence petitioner for second degree burglary, violent, where

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the indictment failed to state an aggravating circumstance under

S.C. Code Ann. § 16-11-312(B)(Supp. 1997)?1

LAW/ANALYSIS

Petitioner argues that the trial court lacked subject matter jurisdiction to

convict and sentence him for second degree burglary, violent, where the

elements of such offense were not included in count eight of the indictment to

the grand jury. We agree.

The offense of second degree burglary is codified at S.C. Code Ann. §

16-11-312 (Supp. 1998), which provides two definitions of the offense,

subsections (A) and (B). Subsection (A) defines second degree burglary as

entering a dwelling2 without consent and with intent to commit a crime therein.

S.C. Code Ann. § 16-11-312(A). Under subsection (B), a person is also guilty of

second degree burglary if he enters a building3 without consent and with intent

to commit a crime therein, and where the burglary involves one of several

enumerated aggravating circumstances, one of which is "nighttime" burglary.

S.C. Code Ann. § 16-11-312(B).

it on appeal since matters of subject matter jurisdiction may be raised at any

time. Carter v. State, 329 S.C. 355, 495 S.E.2d 773 (1998); Hope v. State, 328

S.C. 78, 492 S.E.2d 76 (1997).

2 "'Dwelling' means its definition found in § 16-11-10 and also means the

living quarters of a building which is used or normally used for sleeping, living,

or lodging by a person." S.C. Code Ann. § 16-11-310(2) (Supp. 1998).

3 S.C. Code Ann. § 16-11-310(l) (Supp. 1998) defines "Building" in the

following manner:

"Building" means any structure, vehicle, watercraft, or aircraft:

(a) Where any person lodges or lives; or

(b) Where people assemble for purposes of business, government,

education, religion, entertainment, public transportation, or public

use or where goods are stored. Where a building consists of two or

more units separately occupied or secured, each unit is deemed

both a separate building in itself and a part of the main building.

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Second degree burglary, as defined in subsection (B), is specifically listed

as a violent offense under S.C. Code Ann. § 16-1-60 (Supp. 1998). Conversely,

second degree burglary under subsection (A) is classified as a nonviolent

offense. See S.C. Code Ann. § 16-1-70 (Supp. 1998). Petitioner argues that

when the solicitor orally amended count eight of the indictment, she changed

the nature of the offense by including the aggravating circumstance of

"nighttime" burglary. This, in turn, changed the classification of the offense

from the nonviolent form of second degree burglary to the violent form, i.e.,

second degree burglary as defined under subsection (B). Petitioner further

notes that by changing the offense from nonviolent to violent, he will have to

serve one-third of his sentence before being eligible for parole, as opposed to

one-fourth of the sentence under the nonviolent form.4

Pursuant to S.C. Code Ann. § 17-19-100 (1985), "If (a) there be any defect

in form in any indictments or (b) on the trial of any case there shall appear to

be any variance between the allegations of the indictment and the evidence

offered in proof thereof, the court before which the trial shall be had may amend

the indictment (according to the proof, if the amendment be because of a

variance) if such amendment does not change the nature of the offense charged."

(emphasis added). Thus, the question presented on this appeal is whether the

amendment changed the nature of the offense charged.

In State v. Sowell, 85 S.C. 278, 67 S.E. 216 (1910), the defendant was

indicted under section 145 of the South Carolina Criminal Code of 1902, which

provided:

Every person who shall break and enter, or who shall break with

intent to enter, in the daytime, any dwelling house or other house,

subsection (A) or (B) is punishable by imprisonment for not more than fifteen

years, provided that no person convicted of second degree burglary will be

eligible for parole until service of one-third of the sentence. However, under

S.C. Code Ann. § 24-21-610 (1989), for convictions of nonviolent crimes, an

inmate is eligible for parole after serving one-fourth of the sentence. In Hair v.

State, 305 S.C. 77, 406 S.E.2d 332 (1991), we held that since the Omnibus

Crime Bill was enacted after section 16-11-312, subsection (C) of 16-11-312 had

implicitly been repealed. Thus, a person guilty of the nonviolent form of second

degree burglary would have to only serve one-fourth of his sentence to be

eligible for parole, as opposed to the one-third for the violent form.

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or who shall break and enter, or who shall break with intent to

enter in the nighttime, any house, the breaking and entering of

which would not constitute a burglary, with intent to commit a

felony or other crime of a lesser grade, shall be guilty of a felony,

and punishable at the discretion of the court by imprisonment in

the county jail or penitentiary for a term not exceeding one year.

(emphasis added). In Sowell, the indictment stated that the offense had been

committed in the "daytime." At trial, the indictment was amended to state that

the offense was committed in the "nighttime." This Court noted that section

145 created two distinct and different offenses even though both belonged to the

same class of felonies and were punishable in the same way.5 The Court held

that the amendment was improper because it changed the nature of the offense

as originally charged in the indictment. Sowell, supra; see also State v. Sweat,

221 S.C. 270, 70 S.E.2d 234 (1952).

In the instant case, count eight of the indictment properly set out the

elements for second degree burglary under section 16-11-312(A) ("person enters

a dwelling without consent and with intent to commit a crime therein."). The

solicitor amended count eight to state that the offense was committed at

"nighttime." According to the solicitor, petitioner pleaded guilty to second

degree burglary, violent, as defined under section 16-11-312(B) ("person enters

a building without consent and with intent to commit a crime therein, and . . .

(3) the entering or remaining occurs in the nighttime.").

We hold that by amending the indictment, the solicitor changed the

nature of the offense charged because the circumstance of "nighttime" burglary

was material to charging Defendant with second degree burglary under

subsection (B). See Sowell, supra; 41 Am. Jur. 2d Indictments and Informations

§ 184 at 792 (1995)("An indictment is not invalid merely for omitting or

incorrectly stating the time or date of the alleged offense, if this information is

that this section of the criminal code created the following two distinct and

different offenses: (1) It is made a felony to break and enter, or to break with

intent to enter, in the daytime, any house, whether it be a dwelling house or a

house of any other character, with intent to commit a felony, or other crime of

lesser grade; and (2) it is likewise made a felony to break and enter, or break

with intent to enter, in the nighttime, any house, except a dwelling house, or

house within the curtilage of the dwelling house.

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neither material to the charged conduct nor necessary for the preparation of a

defense."). Thus, the trial court did not have jurisdiction to accept petitioner's

guilty plea of second degree burglary under count eight, as amended. See

Murdock v. State, 308 S.C. 143) 417 S.E.2d 543 (1992)(the circuit court lacks

jurisdiction to accept a guilty plea based upon a defective indictment). This

would hold true regardless whether the amendment changed the penalty. See

Sowell, supra (holding that the indictment could not be amended to replace

"daytime" with "nighttime" even though the two offenses were punishable in the

same way); cf 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).

CONCLUSION

Based on the foregoing, we REVERSE the decision of the PCR court.

MOORE, WALLER, and BURNETT, JJ., concur. FINNEY, C.J., not participating.

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