THE STATE OF SOUTH CAROLINA
In The Supreme Court
The State, Respondent,
Karen L. Johnston, Petitioner.
ON WRIT OF CERTIORARI TO THE COURT OF
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
STATE v. JOHNSTON
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.
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unpublished opinion, the Court of Appeals affirmed Defendant's conviction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granted Defendant's petition for rehearing and substituted its unpublished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
1 State v. Johnston, 96-UP-229 (Ct. App. filed July 29, 1996).
STATE v. JOHNSTON
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
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
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
STATE v. JOHNSTON
appellate review. State v. Gamer, 304 S.C. 220, 403 S.E.2d 631 (1991); State
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
However, this case presents the exceptional circumstance in which the
2 Defendant argues that the following cases imply that a sentence
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.
STATE v. JOHNSTON
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
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.
3 Our holding today is not intended to disrupt our settled rules on issue
preservation and PCR applications. The facts here are unique and demand
an expedited result.