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2007-MO-033 - Mitchell 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

Ben L. Mitchell, Respondent,

v.

State of South Carolina, Petitioner.


ON WRIT OF CERTIORARI


Appeal From Charleston County
 Roger M. Young, Circuit Court Judge


Memorandum Opinion No.  2007-MO-033
Submitted May 23, 2007 – Filed June 4, 2007


REVERSED


Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, and Assistant Attorney General Colleen E. Dixon, all of Columbia, for Petitioner.

Assistant Appellate Defender Aileen P. Clare, of Columbia, for Respondent.


PER CURIAM:  Reversed pursuant to Rule 220(b) (1), SCACR, and the following authorities:  Edwards v. State, 372 S.C. 497, 642 S.E.2d 738 (2007) (Court will reverse the PCR judge’s decision when it is controlled by an error of law); Clark v. State, 315 S.C. 385, 434 S.E.2d 266 (1993) (this Court will reverse the grant of PCR based upon after-discovered evidence where movant must fails to demonstrate the evidence: (1) is such that it would probably change the result if a new trial were granted; (2) has been discovered since the trial; (3) could not in the exercise of due diligence have been discovered prior to trial; (4) is material; (5) is not merely cumulative or impeaching).

REVERSED.

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