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South Carolina
JUDICIAL DEPARTMENT
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RULE 247

CERTIORARI TO REVIEW DNA TESTING DECISIONS

(a) Review by Writ of Certiorari. A final order of the circuit or family court denying or granting DNA testing under the Access to Justice Post-Conviction DNA Testing Act (S.C. Code Ann. §§17-28-10 to -120) shall be reviewed upon petition of either party for a writ of certiorari according to the procedure set forth in this rule.

(b) Notice of Appeal and Ordering Transcript. The notice of appeal shall be served on all respondents within ten (10) days after receipt of written notice of entry of the final order. If review will involve testing relating to a case in which a sentence of death was imposed or will involve a challenge on state or federal grounds to the constitutionality of a state law or county or municipal ordinance, the notice of appeal shall be filed with the Supreme Court. In all other cases, the notice of appeal shall be filed with the Court of Appeals. Under Rule 204, SCACR, the Supreme Court may certify a case for review by the Supreme Court. Further, in the same manner and under the same time limitations as provided for appeals from the Court of General Sessions or the Family Court in juvenile delinquency cases in Rule 207, the petitioner shall obtain from the court reporter a transcript of the proceedings in the lower court.

(c) Service and Filing of Petition and Appendix. Within thirty (30) days of receipt of the transcript, petitioner shall serve a copy of the Appendix and petition for a writ of certiorari on opposing counsel and shall file with the Clerk of the appellate court in which the matter is pending an original plus six (6) copies of the petition, two (2) copies of the Appendix, and proof of service showing the Appendix and petition have been served. As provided by Rule 267(d), one copy of the Appendix filed with the appellate court shall be filed unbound.

(d) Content of Petition. The petition shall contain:

(1) The questions presented for review, expressed in the terms and circumstances of the case but without unnecessary detail.

(2) A concise statement of the case containing the facts material to the consideration of the questions presented.

(3) A direct and concise argument in support of the petition. The argument on each question shall include citation of authority and specific reference to pertinent portions of the lower court record. The total length of a petition shall not exceed twenty-five (25) pages.

(e) Content of Appendix. The Appendix shall contain:

(1) The entire lower court record.

(2) A copy of the final order entered in the proceeding.

(3) An index setting forth the principal matters contained in the appendix. This index shall be in the same form required for a Record on Appeal under Rule 210(e).

(f) Return of Respondent. Within thirty (30) days after service of the petition and Appendix, respondent shall serve a copy of a return on opposing counsel, and shall file with the Clerk of the appellate court in which the matter is pending an original and six (6) copies of the return and proof of service showing that the return has been served. The return may rephrase the questions, offer additional sustaining grounds, and present a concise counter-statement. The total length of a return shall not exceed twenty-five (25) pages.

(g) Reply. The petitioner shall have ten (10) days from the date of service of the return to file with the Clerk of the appellate court in which the matter is pending an original and six (6) copies of a reply and proof of service showing that the reply has been served. The total length of the reply shall not exceed fifteen (15) pages.

(h) Procedure Upon Grant of Certiorari. Upon the concurrence of any two justices of the Supreme Court or one judge of a three-judge panel of the Court of Appeals, the petition may be granted on any question presented. The petition will be considered by the appellate court without oral argument. If the petition is granted, the Clerk shall notify each party or his attorney, specifying the question or questions to be considered, and the parties shall prepare briefs addressing the question(s). Petitioner shall have thirty (30) days from the date the petition is granted to serve a copy of a brief on all parties to the appeal, and file with the Clerk of the appellate court fifteen (15) copies of the brief, along with proof of service. At the time the brief is filed, petitioner shall also file thirteen (13) additional copies of the Appendix. Within thirty (30) days after service of petitioner’s brief, respondent shall serve a copy of a brief on all parties to the appeal, and file with the Clerk of the appellate court fifteen (15) copies of the brief, along with proof of service. Petitioner may file a reply brief. If a reply brief is prepared, petitioner shall, within ten (10) days after service of respondent’s brief, serve a copy of the reply brief on all parties to the appeal and file with the Clerk of the appellate court fifteen (15) copies of the reply brief, along with proof of service. The briefs shall, to the extent possible, comply with the requirements of Rule 208(b). Oral argument shall not be permitted unless ordered by the appellate court.

(i) Review of Decisions of the Court of Appeals. A final decision of the Court of Appeals under this rule may be reviewed as provided by Rule 242, SCACR.

This rule was added to the SCACR by Order dated January 29, 2009, effective April 29, 2009, by Order of the same date.