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2004-MO-061 - Burks 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

Troy Burks, Petitioner,

v.

State of South Carolina, Respondent.


ON WRIT OF CERTIORARI


Appeal From Greenville County
C. Victor Pyle, Jr., Trial Judge
 John C. Few, Post-Conviction Relief Judge


Memorandum Opinion No. 2004-MO-061
Submitted October 19, 2004 – Filed November 8, 2004


REVERSED


Assistant Appellate Defender Aileen P. Clare, S.C. Office of Appellate Defense, of Columbia, for Petitioner.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Assistant Attorney General Christopher L. Newton, all of Columbia, for Respondent.


PER CURIAM:  The circuit court granted petitioner a belated review of the denial of his first application for post-conviction relief (PCR) pursuant to Austin v. State, 305 S.C. 453, 409 S.E.2d 395 (1991).  Counsel for petitioner has failed to follow the procedure set forth in King v. State, 308 S.C. 348, 417 S.E.2d 868 (1992).  No petition for a writ of certiorari alleging that the PCR judge properly granted petitioner an Austin review was filed.  Instead, counsel filed only an Austin petition, pursuant to Johnson v. State, 294 S.C. 310, 364 S.E.2d 201 (1988), and a request to be relieved as counsel.  Petitioner has filed a pro se response to the Johnson petition and a request for production of documents.

We issue a writ of certiorari to address the question of whether the PCR judge properly granted petitioner an Austin review, dispense with further briefing, and reverse the order of the PCR judge.  In addition, we deny petitioner’s request for production of documents as the material petitioner asks for is not necessary for a decision in this matter.

 Following the denial of petitioner’s first PCR application, a petition for a writ of certiorari was filed with this Court.  After reviewing the merits, we denied the petition.  Accordingly, we reverse the order of the PCR judge since his finding that petitioner was entitled to an Austin review of the denial of his first PCR application is not supported by the record.  Rogers v. State, 317 S.C. 392, 453 S.E.2d 892 (1995) (PCR judge’s findings will not be upheld if there is no probative evidence to support them).

Because petitioner is not entitled to an Austin review, we decline to address the Austin petition filed by counsel or the pro se response thereto filed by petitioner.

REVERSED.

TOAL, C.J., MOORE, WALLER, BURNETT and PLEICONES, JJ., concur.