Rule 71.1. Post-conviction Relief Actions

• Library: South Carolina Rules Annotated (SCBar) (2019 Ed.)

RULE 71.1. POST-CONVICTION RELIEF ACTIONS

(a) Procedure.

The procedure for post-conviction relief is provided by the Uniform Post-Conviction Procedure Act (Act), S.C. Code Ann. §§ 17-27-10 to -120 (1985). The South Carolina Rules of Civil Procedure shall apply to the extent that they are not inconsistent with the Act.

(b) Time and Form of Application.

An application for post-conviction relief cannot be made while an appeal from the conviction or sentence is pending or during the time in which an appeal may be perfected. All applications shall be made on the form set out in the Appendix of Forms. The Office of Court Administration shall insure that an adequate quantity of these forms are available to the circuit court clerks for distribution to persons seeking post-conviction relief.

(c) Independent Action.

An application filed under the Act is an independent civil action which should be separately filed and indexed by the clerk of court. The caption in all post-conviction relief actions shall read: Full Name and Prison number (if any) of Applicant v. State of South Carolina.

(d) Appointment of Counsel for Hearing.

If, after the State has filed its return, the application presents questions of law or fact which will require a hearing, the court shall promptly appoint counsel to assist the applicant if he is indigent. Counsel shall be given a reasonable time to confer with the applicant. Counsel shall insure that all available grounds for relief are included in the application and shall amend the application if necessary.

(e) Burden of Proof.

The applicant has the burden of establishing his entitlement to relief by a preponderance of the evidence.

(f) Filing and Service of Order.

The post-conviction relief judge shall submit the signed final order or judgment to the clerk for filing and the clerk of court shall provide notice of entry of judgment and serve a copy of the order or judgment to the parties as provided in Rule 77(d), SCRCP.

(g) Appellate Review; Continuing Representation.

A final decision entered under the Act shall be reviewed according to the procedure specified by Rule 243, SCACR. If an applicant represented by counsel desires to appeal, counsel shall serve and file a Notice of Appeal as required by Rule 243, SCACR, and shall continue to represent the applicant on appeal unless automatically relieved under Rule 602, SCACR, or allowed to withdraw under Rule 264, SCACR. If the applicant is indigent, counsel shall assist the applicant in obtaining representation by the Division of Appellate Defense of the Office of Indigent Defense.

Note to 1990 Amendment:

This rule is based in part on former Supreme Court Rule 50(1)-(8), and has no counterpart in the Federal Rules.

Note to 2001 Amendments:

These amendments consolidate former Rule 71.1(f) and (g) and change the method of appointment of counsel for indigents on appeal to conform to Rule 602, SCACR.

Note to 2004 Amendment:

The 2004 Amendment clarifies the process for filing and notification of parties of filed orders in postconviction relief actions.

Note to 2007 Amendment:

In 2005, the Office of Appellate Defense became a division of the Office of Indigent Defense. This amendment reflects this organizational change.

Note to 2009 Amendment

References to the South Carolina Appellate Court Rules in Rule 71.1 were amended to reflect changes in the numbering of those rules by Orders of the South Carolina Supreme Court dated January 29, 2009 and April 29, 2009.

Editor's Note: Download Application for Post-Conviction Relief Form at SC Judicial Department: http://www.judicial.state.sc.us/courtReg/SCRCPAppe ndix.cfm

Annotations Rule 71.1

71.1

Appellate Review

On review of a PCR court's resolution of procedural questions arising under the Post-Conviction Procedure Act or the South Carolina Rules of Civil Procedure, we apply an abuse of discretion standard. Mangal v. State, 421 S.C. 85, 92, 805 S.E.2d 568, 571 (2017).

In PCR actions, an appellate court will uphold the lower court's findings if there is any evidence of probative value that supports the findings. However, the Court will reverse the PCR court's decision if it is controlled by an error of law. "The burden of proof is on the applicant to prove his allegations by a preponderance of the evidence." Tappeiner v. State, 416 S.C. 239, 248, 785 S.E.2d 471, 475-76 (2016).

"Although petitioner presented testimony that contradicted trial counsel's testimony, we have consistently given great deference to PCR judge's findings and conclusions when matters of credibility are involved." McCray v. South Carolina, 317 S.C. 557, 455 S.E.2d 686, 688 n.2 (Ct. App. 1995).

"Ordinarily, we defer to the PCR judge's credibility...This Court is not bound by the PCR record alone, but must look as well at the trial record." Solomon v. State, 313 S.C. 526, 443 S.E.2d 540, 543 (1994) (Finney, J., Dissent).

"We give great deference to a judge's findings when matters of credibility are involved since we lack the opportunity to directly observe the witnesses. Any evidence of probative value is sufficient to uphold the PCR judge's findings." Solomon v. State, 313 S.C. 526, 443 S.E.2d 540, 542 (1994).

"On appellate review, the ruling of the PCR court will be upheld if there is any evidence to support its findings." Wilson v. State, 315 S.C. 158, 432 S.E.2d 477, 480 (1993).

Burden

"The burden of proof is on the applicant to prove his allegations by a preponderance of the evidence." Tappeiner v. State, 416 S.C. 239, 248, 785 S.E.2d 471, 476 (2016).

A PCR applicant has the burden of proving his entitlement to relief by a preponderance of the evidence. Wigington v. State, 413 S.C. 578, 584, 776 S.E.2d 407, 410 (Ct. App. 2015).

Counsel Trial Strategy

"Where counsel articulates a valid reason for employing a certain trial strategy, the conduct will not be deemed ineffective." Padgett v. State, 324 S.C. 22, 484 S.E.2d 101...