Dycippa L. Garner, Petitioner,
State of South Carolina, Respondent.
H. TOAL C.J.
filed an application for post-conviction relief (PCR)
alleging trial counsel was ineffective in failing to object
to the sufficiency of the indictments, in failing to file a
direct appeal, and in failing to object to the sentence
enhancement at the time of sentencing. The State moved to
dismiss the application as barred by the statute of
limitations. Petitioner's PCR counsel argued the statute
of limitations should not apply to the application if
petitioner was granted the right to a direct appeal.
a hearing, the PCR judge found petitioner did not knowingly
and intelligently waive his right to direct appeal and was
entitled to a belated review of his direct appeal issues
pursuant to White v. State, 263 S.C. 110, 208 S.E.2d
35 (1974). The PCR judge also granted petitioner's motion
to dismiss the application without prejudice and found the
statute of limitations did not apply to petitioner's
application since the PCR judge found petitioner was entitled
to a belated appeal.
State filed a motion to alter or amend the order. The PCR
judge granted the motion "to the extent that the
findings and conclusion [were] amended to determine that the
statute of limitations does not apply to [petitioner's]
allegation that he did not knowingly and voluntarily waive
his right to an appeal of his guilty plea [sic]." The
order was further amended to reflect the State's
objection to petitioner's motion to dismiss the remaining
allegations without prejudice and to preserve the State's
right to raise any and all defenses, such as the statute of
limitations and laches, to any and all allegations raised in
any future PCR actions. Petitioner has filed a notice of
Carolina Code Ann. § 17-27-80 (2003) states that a PCR
court "shall make specific findings of fact, and state
expressly its conclusions of law relating to each issue
presented. This order is the final order."
(Emphasis added). All grounds for relief available to an
applicant must be raised in his original, supplemental or
amended application. S.C. Code Ann. § 17-27-90 (2003).
"Any ground finally adjudicated or not so raised, or
knowingly, voluntarily and intelligently waived in the
proceeding that resulted in the conviction or sentence or an
any other proceeding the applicant has taken to secure
relief, may not be the basis for a subsequent application,
unless the court finds a ground for relief asserted which for
sufficient reason was not asserted or was inadequately raised
in the original, supplemental or amended application."
Id. A final judgment entered under the Uniform
Post-Conviction Relief Act may be reviewed by writ of
certiorari. S.C. Code Ann. § 17-27-100 (2003); Rule
order in a PCR matter which does not include specific
findings of fact and conclusions of law relating to each
issue presented, but instead dismisses some of the issues
without prejudice to them being raised in a future PCR
proceeding, does not constitute a final order or judgment
under the Uniform Post-Conviction Relief Act and therefore is
not reviewable by writ of certiorari. Similar to the
situation in Pruitt v. State, 310 S.C. 254, 423
S.E.2d 127 (1992), failure to finally resolve each of the
issues presented in the PCR application when it is initially
considered ultimately increases the work load of all involved
when a new hearing is required to secure the rulings which
should have been made initially.
we dismiss petitioner's notice of appeal without
prejudice to his right to file another notice of appeal upon
the issuance of a final order on his PCR application. We
remand this case to the PCR judge to conduct a hearing, if
necessary, and issue a final order which rules on all of the
issues raised in petitioner's PCR application as well as
the State's motion to dismiss. The final order shall be
issued within sixty days of the date of this order.
E. Moore J., John H. Waller, Jr. J., E. C. Burnett, III J.,
Costa M. Pleicones J.
We assume it was the PCR
judge's reasoning that if petitioner's convictions
are reversed after a belated review of his direct appeal
issues, it would be unnecessary to address the remaining
allegations in the PCR application. However, if the
convictions are not reversed, it is likely another PCR
application and another petition for a writ of certiorari
will be filed, creating additional work for both the circuit
court and the appellate court. Moreover, there could be a
situation where the additional allegations raised in a PCR
application lead to a new trial, obviating the need for a
belated review of any direct appeal issues. Accordingly, the
most efficient manner in which to handle PCR applications is
to comply ...