Opinion
20095
September 16, 1975.
Messrs. Daniel R. McLeod, Atty. Gen., Emmet H. Clair and Stephen T. Savitz, Asst. Attys. Gen., of Columbia, for Appellant, cite: As to the legislature's not intending that in the absence of a family court the provisions of the Family Court Act would be binding on the Circuit Court: Family Court Act, Number 1195; 1968, page 2718 (Section 15-1095, et seq., Code of Laws of South Carolina, 1962, as amended); 143 S.C. 104, 141 S.E. 181. As to the Lower Court's having erred in holding that the Respondent must be treated as a juvenile when the Respondent entered a voluntary plea of guilty and did not challenge the jurisdiction of the Court at the time of his plea: 395 U.S. 238; 397 U.S. 759; 397 U.S. 742; 468 F.2d 1059; 256 S.C. 48, 180 S.E.2d 540; 42 C.J.S., Infants, Section 98, pages 233-234. As to a lack of any denial of equal protection and due process in violation of the United States and South Carolina Constitutions when one under the age of seventeen (17) is prosecuted in a Circuit Court as an adult in counties which have not adopted the Family Court Act: 316 F. Supp. 22, aff. 436 F.2d 1116; 456 F.2d 18; 316 U.S. 535; Section 55-50.3, Code of Laws of South Carolina, 1962, as amended; 257 S.C. 82, 184 S.E.2d 80. As to the Lower Court's having erred in holding the Family Court Act binding on the Circuit Court when the Probate Court is charged by statute with jurisdiction of juveniles: Section 17-251, et seq., Code of Laws of South Carolina, 1062, as amended.
Herbert E. Buhl, III, of Columbia, and Marian Wright Edelman, and Janet L. Shur, of Cambridge, Mass., for Respondent, cite: As to the Family Court Act's, by its terms and through the intent of the South Carolina Legislature, being binding on all South Carolina courts which exercise family-court type jurisdiction: S.C. Code, Ch. 6.1, § 15-1095; S.C. Code, Ch. 6.1, § 15-1095.12 and § 15-1095.20; S.C. Code Ch. 6.1 § 15-1095.11; S.C. Code, Ch. 2, § 5550.30; 143 S.C. 104, 141 S.E. 181; 285 U.S. 22; 402 U.S. 363; 360 U.S. 474; 345 U.S. 41. As to Respondent's guilty plea not constituting a waiver of the claims advanced in his application for post-conviction relief: S.C. Constitution, Article V, Section 7; S.C. Code Ch. 6.1, § 15-1095.9, § 15-1095.11; S.C. Code, Ch. 6.1, § 15-1095.9(B); S.C. Code, Ch. 6.1, 15-1095.12; 465 F.2d 49; S.C. Code, Ch. 6.1, § 15-1095.11; 348 F.2d 715; cert. denied, 382 U.S. 843; 257 F.2d 271; 353 F. Supp. 571; 477 F.2d 1187; 211 F.2d 944; 341 F. Supp. 436; 391 F. 276; 279 F.2d 792; cert. denied, 364 U.S. 908; 242 Ky. 736, 47 S.W.2d 548; 465 F.2d 49; 304 U.S. 458; 394 U.S. 459; 397 U.S. 742; 463 F.2d 1032; 387 U.S. 1; 332 U.S. 596; 370 U.S. 49; 90 S.Ct. 1441, 397 U.S. 759; 90 S.Ct. 1463, 397 U.S. 742; 468 F.2d 1059; 256 S.C. 48, 180 S.E.2d 540. As to the equal protection and due process guarantees of the Constitutions of the United States and the State of South Carolina being violated if the Family Court Act is read to exclude Respondent from its protections: 316 F. Supp. 22; 436 F.2d 1116; 316 F. Supp. 22; affirmed 436 F.2d 1116; 347 U.S. 497; 118 U.S. 356; 405 U.S. 134; 383 U.S. 663; 395 U.S. 621; 393 U.S. 23; 239 U.S. 33; 400 U.S. 433; 408 U.S. 564; 406 U.S. 164; 405 U.S. 330; 394 U.S. 618; 405 U.S. 316 F. Supp. 22; 405 U.S. 645; 373 U.S. 526. As to Appellant's exception as to the jurisdiction of the probate courts not being properly before this court: 258 S.C. 1, 186 S.E.2d 813; 250 S.C. 275, 157 S.E.2d 413; 255 S.C. 115, 177 S.E.2d 370.
September 16, 1975.
This post conviction proceeding involves the validity of guilty pleas entered by respondent to charges of possession and distribution of marijuana.
Respondent, a minor, represented by appointed counsel at the time, plead guilty in the Court of General Sessions for Bamberg County on February 18, 1974 to three separate indictments charging: (1) distribution of marijuana; (2) possession of marijuana with intent to distribute; and (3) simple possession of marijuana. He represented to the court, at the time of his plea, that he was seventeen (17) years of age. No inquiry was made, nor representation made by respondent or his counsel, as to respondent's age at the time of the commission of the crime. He was, however, in fact, only sixteen years of age at that time.
Since the only showing before the trial court was that respondent was seventeen (17) years of age, the trial judge treated the respondent as a "youthful offender," his plea as a conviction, and sentenced him under the Youthful Offender Act (Section 55-391 et seq., 1962 Code of Laws, as amended), which defines a "youthful offender," in Section 55-392, as "all male and female offenders who are seventeen but less than twenty-five years of age at the time of conviction."
Respondent now contends that, since he was only sixteen (16) years of age at the time of the commission of the crime, the Court of General Sessions had no jurisdiction in the matter and his plea should be set aside and the cause remanded for handling in accordance with the Family Court Act (Code Section 15-1095 et seq., as amended).
The Family Court Act does not establish a Family Court for every county in South Carolina, but provides that, where such a court is established, it shall have exclusive jurisdiction for the initiation of any action against a child who is defined in Section 15-1095.2 as "a person less than seventeen years of age." The Family Court Act further provides in Section 15-1095 that:
Any county in this State which has established or shall establish, pursuant to the provisions of the chapter, a children's or juvenile and domestic relations court or any court exercising similar jurisdiction, shall, from May 22, 1968, be required to follow the plan and procedures herein set forth.
The quoted provision clearly states that the Family Court Act applies only in counties that had established or shall establish a children's court, a domestic relations court, or a court exercising similar jurisdiction. The Family Court Act therefore does not purport to affect the original jurisdiction of the Court of General Sessions in criminal matters in any county that is without a children's or domestic relations court.
Bamberg County, where respondent was tried, had no Family Court at the time and the Court of General Sessions of that county had the requisite jurisdiction to dispose of the criminal charges against respondent, a minor, since the General Assembly had not granted exclusive jurisdiction of such matters to any other court having jurisdiction in Bamberg County. Article 5, Section 7, South Carolina Constitution.
Respondent raises certain objections to the exercise of this jurisdiction over a juvenile. We decline to rule on these objections. We find that respondent waived his objections to jurisdiction over his person by failing to assert the alleged jurisdictional defect. It has been held that a juvenile may waive his right to be treated as such either by his failure to plead his age or by entering a guilty plea. 43 C.J.S. Infants § 98, p. 233. This Court has consistently held that after pleading guilty to the indictment, a defendant's objection to jurisdiction comes too late. Babb v. State, 240 S.C. 235, 125 S.E.2d 467, (1962), certiorari denied, 375 U.S. 979, 84 S.Ct. 502, 11 L.Ed.2d 425.
Accordingly, the order of the lower court is reversed and the application for Post Conviction Relief is denied.
MOSS, C.J., LITTLEJOHN, J., and BRAILSFORD, Acting Associate Justice, concur.
NESS, J., disqualified.