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25005 - Carter v. State

Shearouse Adv. Sh. No.
S.E. 2d

THE STATE OF SOUTH CAROLINA

In The Supreme Court

Steve Carter, Petitioner,

v.

State of South Carolina, Respondent.

ON WRIT OF CERTIORARI

Appeal From Dillon County

Mark H. Westbrook, Post-Conviction Relief Judge

Opinion No. 25005

Submitted October 5, 1999 - Filed October 11, 1999

AFFIRMED

Senior Assistant Appellate Defender Wanda H.

Haile, of South Carolina Office of Appellate Defense,

of Columbia, for petitioner.

Attorney General Charles Molony Condon, Deputy

Attorney General John W. McIntosh, Assistant

Deputy Attorney General Teresa A. Knox, and

Assistant Attorney General Lawrence G. Wedekind,

all of Columbia, for respondent.

PER CURIAM: Petitioner seeks a writ of certiorari from an

order of the circuit court dismissing his application for post-conviction relief

(PCR) without prejudice. We grant the petition, dispense with further

briefing, and affirm.

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Carter v. SC

Petitioner is incarcerated in a federal prison. Because petitioner

was not incarcerated in this State at the time of his PCR application, the

application was dismissed without prejudice to his right to apply for PCR

when he is incarcerated in a State facility. See Clayton v. State, 278 S.C.

655, 301 S.E.2d 133 (1983)(PCR application is ' properly dismissed when the

applicant is incarcerated in federal prison). However, at the time of the

dismissal the statute of limitations had run. S.C. Code Ann. § 17-27-45(A)

(Supp. 1998). Section 27-17-45 contains no provision for tolling the statute of

limitations where the applicant is incarcerated in another jurisdiction.

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. Norris v. State, 335 S.C. 30, 515 S.E.2d 523 (1999). However,

where the State consents to the dismissal of a PCR application after the

statute of limitations has run and agrees that the petitioner should be

allowed to refile an application, the State is estopped from asserting the

statute of limitations as a defense to a subsequent PCR application. Id.

In Norris, we recognized that § 27-17-45 contains no provision for

tolling the statute of limitations during an applicant's mental incompetence.

Similarly, there is no provision for tolling where an applicant is incarcerated

in another jurisdiction. However, as in Norris, because of the consent to the

dismissal and the agreement that petitioner should be allowed to refile an

application when he is incarcerated in this State, the State is estopped from

asserting the statute of limitations if petitioner attempts to file a subsequent

application for PCR . In light of this holding, it is unnecessary for this Court

to address the tolling issue.

The order of the PCR judge dismissing petitioner's application

without prejudice to his right to file an application when he is incarcerated

in this State is AFFIRMED.

t, ~rl C.J.

-A.J.

A.J.

Waller, A.J., not participating

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