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2005-MO-031 - Smith 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


John T. Smith, #233610, Respondent,

v.

State of South Carolina, Petitioner.


Appeal From Greenville County
 John W. Kittredge, Circuit Court Judge


Memorandum Opinion No. 2005-MO-031
Submitted June 2, 2005 – Filed June 20, 2005


REVERSED


Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, and Assistant Attorney General Elizabeth R. McMahon, of Columbia, for Petitioner.

Assistant Appellate Defender Eleanor Duffy Cleary, of Columbia, for Respondent.


PER CURIAM:  We granted a writ of certiorari to review the circuit court’s grant of post-conviction relief to respondent, John T. Smith.  We now reverse pursuant to Rule 220(b)(1), SCACR and the following authorities:  State v. Cabrera-Pena, 361 S.C. 372, 605 S.E.2d 522 (2004) (where no evidence exists to support charge on lesser-included offense of involuntary manslaughter, defendant is not entitled to the charge); State v. Atkins, 293 S.C. 294, 299, 360 S.E.2d 302, 305 (1987), overruled on other grounds, State v. Torrence, 305 S.C. 45, 406 S.E.2d 315 (1991) (lesser included offense instruction is required only when the evidence warrants such an instruction); Pierce v. State, 338 S.C. 139, 144, 526 S.E.2d 222, 225 (2000) (if no probative evidence exists to support the findings of the PCR judge, this Court will reverse). 

REVERSED.

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