THE STATE OF SOUTH CAROLINA
In The Supreme Court
Legrand Norris, Petitioner,
State of South Carolina, Respondent.
ON WRIT OF CERTIORARI
Appeal From Lexington County
Julius H. Baggett, Trial Judge
Thomas J. Ervin, Post-Conviction Judge
Opinion No. 24930
Submitted February 18, 1999 - Filed April 5, 1999
Daniel T. Stacey, Chief Attorney, of South Carolina
Office of Appellate Defense, of Columbia, for petitioner.
Attorney General Charles M. Condon; Deputy Attorney
General John W. McIntosh; Assistant Deputy Attorney
General Teresa A. Knox, all of Columbia, for
TOAL, A.C.J.: In this post-conviction relief ("PCR") case, the PCR court
dismissed Legrand Norris's ("petitioner") application without prejudice, finding
petitioner mentally incompetent to proceed with the case. We granted the
petition for a writ of certiorari to review the PCR court's decision. We affirm.
In November 1990, petitioner was convicted of kidnaping and criminal
sexual conduct third degree. He was sentenced to life imprisonment for
kidnaping and ten years for criminal sexual conduct. Petitioner appealed and
this Court affirmed his conviction and sentence pursuant to Rule 220(b)(1),
SCACR. State v. Norris, Op. No. 92-MO-93 (filed April 24,1992).
In March 1995, petitioner filed an application for PCR. Prior to the PCR
hearing, petitioner's attorney, Reece Williams, requested that petitioner
undergo a psychiatric examination. The PCR court agreed and ordered the
examination. Psychiatrist Dr. Richard L. Frierson examined petitioner and
determined that he suffered from Bipolar Disorder, Mixed type. Dr. Frierson's
evaluation report was admitted at the PCR hearing, and Dr. Frierson testified
that, in his opinion, petitioner was not competent to proceed with the PCR
hearing. Dr. Frierson further testified that petitioner was not taking his
medication, and if he were, there was a "good" likelihood that he might be
restored to competency.
During the hearing, the PCR judge stated that based on Dr. Frierson's
testimony, the case should be continued. The attorney for the State later
requested that the case be dismissed without prejudice instead of being
continued, explaining, "If we just continue it we're going to have to put
[petitioner] on the roster every time." Petitioner's attorney did not object to the
State's request and, in fact, endorsed it, stating: "And so I don't think that we
have any choice but to, as Miss Knox says, perhaps dismiss this without
prejudice until [petitioner] achieves some degree of understanding about what's
going on The PCR court then ordered that the case be dismissed without
This Court granted a petition for a writ of certiorari to consider the
Whether the PCR court erred when it dismissed petitioner's case
without prejudice, rather than continuing it on the docket until
such time as petitioner is competent to proceed?
Petitioner argues that the appropriate action under these circumstances
would be to continue the case, rather than dismiss it without prejudice. He
contends that, otherwise, complicated litigation could arise with respect to the
statute of limitations or tolling due to mental incompetency. We disagree.
An application for post-conviction relief must be filed within one year
after the entry of a judgment of conviction, or within one year after the sending
of the remittitur to the lower court from an appeal or the filing of the final
decision upon an appeal, whichever is later. S.C. Code Ann. § 17-27-45(A)
(Supp. 1998). However, if a defendant was convicted prior to the effective date
of the PCR statute of limitations (July 1, 1995), that defendant had one year
from the effective date to bring his application for post-conviction relief
Peloquin v. State, 321 S.C. 468~ 469 S.E.2d 606 (1996)(holding that all
defendants convicted prior to the effective date of the statute should be allowed
one year after its effective date to file an application).
In the instant case, petitioner's convictions were affirmed by this Court
in April 1992 (prior to the effective date of the PCR statute of limitations).
Thus, the latest date that petitioner could have filed any post-conviction relief
application was July 1, 1996 - one year after the effective date of the PCR
statute of limitations. See Peloquin, supra. Petitioner's initial PCR application
was timely filed in March 1995. Yet, the PCR judge dismissed petitioner's case
without prejudice on November 7, 1996. The PCR judge's written order of
dismissal was issued on January 8, 1997.
In general, when an action is dismissed without prejudice, the statute of
limitations will bar a subsequent suit if the statute runs in the interim. Rink
v. Richland Memorial Hosp., 3 10 S.C. 193, 422 S.E.2d 747 (1992). However, a
defendant is estopped from claiming the defense of statute of limitations when
the defendant consents to plaintiffs motion for voluntary dismissal without
prejudice, and the statute has run prior to the granting of the dismissal. Mende
v. Conway Hosp., Inc., 304 S.C. 313; 404 S.E.2d 33 (1991). Petitioner's initial
PCR application was not dismissed until November 1996 - several months after
the PCR statute of limitations had already run. The State consented to the
dismissal and agreed that petitioner should be allowed to file his application at
a later time once he regained competency. The PCR judge, without objection
from the State, informed petitioner that he could file his application at a later
time. Moreover, the State takes the position on appeal that it would have no
objection to petitioner filing a future PCR application once he regained
competency. Thus, pursuant to Mende, the State would be estopped in the
future from asserting the defense of statute of limitations whenever petitioner
re-files his PCR application.
We recognize that the PCR Act does not provide for tolling the statute of
limitations due to mental incompetency. However, in light of the fact that the
instant case can be resolved pursuant to Mende, we find it unnecessary to
address the tolling issue. We therefore find there is no unfair prejudice to
petitioner as a result of the PCR court's ruling.
Based on the foregoing, we AFFIRM the PCR court's decision to dismiss
petitioner's case without prejudice.
MOORE, WALLER, and BURNETT, JJ., concur. FINNEY, C.J., not