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2004-MO-021 - Scarber v. State

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Supreme Court

Knoland Scarber,        Petitioner,

v.

State of South Carolina,        Respondent.


Appeal From Pickens County
Frank Eppes, Trial Judge
Larry R. Patterson, Post Conviction Judge


Memorandum Opinion No. 2004-MO-021
Submitted March 26, 2004 - Filed April 26, 2004


REVERSED


Assistant Appellate Defender Robert M. Pachak, of the Office of Appellate Defense, of Columbia, for Petitioner.

Attorney General Henry D. McMaster, Chief Deputy Attorney General John W. McIntosh, G. Robert Deloach, and W. Bryan Dukes, all of Columbia, for Respondent.


PER CURIAM:          Petitioner was indicted on charges of first degree burglary, possession of tools used in the commission of a crime, and petit larceny.  The indictments indicate that the charges were nolle prossed nearly a year before petitioner’s trial.  Petitioner was never re-indicted on the charges.  Instead, he was tried on the nolle prossed indictments and convicted as charged.  His convictions and sentences were affirmed on appeal.  State v. Scarber, Op. No. 97-UP-565 (S.C. Ct. App. filed October 30, 1997).

Thereafter, petitioner filed an application for post-conviction relief (PCR), which was denied.  Petitioner now seeks a writ of certiorari.  We grant the petition for a writ of certiorari, dispense with briefing, reverse the PCR judge’s order and vacate petitioner’s sentences and convictions based on our recent holding in Mackey v. State, Op. No. 25795 (S.C. Sup. Ct. filed March 22, 2004)(court is required to dismiss charges when a solicitor has nolle prossed the charges and failed to re-indict a criminal defendant on those charges).

REVERSED. 

TOAL, C.J., WALLER, BURNETT and PLEICONES, JJ., concur.  MOORE, J., not participating.