THE STATE OF SOUTH CAROLINA
In The Supreme Court
Steve Carter, Petitioner,
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
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.
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.
Waller, A.J., not participating