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2006-MO-037 - Rourk 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


Mark Rourk, Petitioner,

v.

State of South Carolina, Respondent.


ON WRIT OF CERTIORARI


Appeal From Dorchester County
 Steven H. John, Post-Conviction Relief Judge


Memorandum Opinion No. 2006-MO-037
Submitted October 17, 2006 – Filed October 23, 2006  


REVERSED


Deputy Chief Attorney Wanda H. Carter, South Carolina Commission on Indigent Defense, Division of Appellate Defense, of Columbia, for Petitioner.

Attorney General Henry D. McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, and Assistant Attorney General Paula S. Magargle, all of Columbia, for Respondent.


PER CURIAM:  Petitioner pled guilty to murder and was sentenced to life imprisonment.  No direct appeal was taken.

Following an evidentiary hearing on petitioner’s application for post-conviction relief (PCR), the PCR judge granted petitioner a belated review of his direct appeal issues pursuant to White v. State, 263 S.C. 110, 208 S.E.2d 35 (1974).  Petitioner now seeks a writ of certiorari from that order.  We grant the petition, dispense with further briefing, and reverse the order of the PCR judge.

The PCR judge found petitioner did not knowingly and voluntarily waive his right to a direct appeal because he was not advised of that right.  Although the judge found that extraordinary circumstances required counsel to discuss the right to a direct appeal with petitioner, the extraordinary circumstances were not set forth in the order, and there was no finding that petitioner requested an appeal or that he had non-frivolous grounds for an appeal.  See Roe v. Flores-Ortega, 528 U.S. 470 (2000); Weathers v. State, 319 S.C. 59, 459 S.E.2d 838 (1995).  Therefore, the PCR judge erred in granting petitioner a White v. State review of his guilty plea.  Accordingly, the order is

REVERSED.

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