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2006-MO-011 - Bowens 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


Gabe Bowens, III, Petitioner-Respondent,

v.

State of South Carolina, Respondent-Petitioner.


ON WRIT OF CERTIORARI


Appeal From Berkeley County
 Daniel F.  Pieper, Post-Conviction Relief Judge


Memorandum Opinion No. 2006-MO-011
Submitted March 7, 2006 – Filed March 13, 2006  


REVERSED


Tara Dawn Shurling, of Columbia, for Petitioner-Respondent.

Attorney General Henry D. McMaster, Chief Deputy Attorney General John W. McIntosh, and Assistant Deputy Attorney General Donald J. Zelenka, of Columbia, for Respondent-Petitioner.


PER CURIAM:  Petitioner-Respondent (Bowens) pled guilty to voluntary manslaughter and was sentenced to imprisonment for twenty-three years.  No direct appeal was taken.

Bowens’ first application for post-conviction relief (PCR) was denied by Judge Rawl.  This Court denied Bowens’ request for a writ of certiorari.

After a hearing on Bowens’ second PCR application, Judge Pieper granted Bowens a belated review of the denial of his first PCR application pursuant to Austin v. State, 305 S.C. 453, 409 S.E.2d 395 (1991).  Both Bowens and the State now ask this Court for a writ of certiorari.  We grant both petitions, dispense with further briefing, and reverse the order of Judge Pieper.

Because Bowens received appellate review of Judge Rawl’s order, Judge Pieper erred in granting him another review of the decision.  Prior PCR counsel’s failure to preserve an issue for appellate review by filing a Rule 59(e), SCRCP, motion to alter or amend does not constitute a unique circumstance which would allow Bowens to file a successive PCR application alleging ineffective assistance of prior PCR counsel.  Aice v. State, 305 S.C. 448, 409 S.E.2d 392 (1991).  Accordingly, Judge Pieper’s order granting Bowens a belated review of Judge Rawl’s order is

REVERSED.

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