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
Travis D. Corley, Petitioner,
State of South Carolina, Respondent.
ON WRIT OF CERTIORARI
Appeal From Barnwell County
Doyet A. Early, III, Post-Conviction Relief Judge
Memorandum Opinion No. 2008-MO-053
Submitted December 16, 2008 – Filed December 22, 2008
REVERSED AND REMANDED
Appellate Defender Eleanor Duffy Cleary, South Carolina Commission on Indigent Defense, Division 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, and Assistant Attorney General Lance S. Boozer, all of Columbia, for Respondent.
PER CURIAM: Petitioner seeks a writ of certiorari from the dismissal without prejudice of his application for post-conviction relief (PCR). The State agrees to a remand for an evidentiary hearing. We grant the petition, dispense with further briefing, and remand this matter for an evidentiary hearing.
Because the State does not have the duty or the authority to ensure an out-of-state prisoner’s presence at a South Carolina PCR hearing, a PCR application may be dismissed without prejudice when the applicant is in custody out-of-state. Carter v. State, 337 S.C. 17, 522 S.E.2d 342 (1999); Clayton v. State, 278 S.C. 655, 301 S.E.2d 133 (1983). However, a hearing may be held without the applicant being physically present. See S.C. Code Ann. § 17-27-80 (2003) (at a PCR evidentiary hearing, the court may receive proof by affidavits, depositions, oral testimony, or other evidence).
Petitioner is currently in federal custody in Kentucky and alleges his South Carolina conviction is affecting his federal sentence. Because petitioner’s claim would be moot if it were heard after petitioner is released from federal custody, we reverse the order of the PCR judge and remand this matter for the appointment of counsel and an evidentiary hearing. Petitioner may participate in the proceedings via telephone, deposition, or other agreed upon method which would preserve the State’s right to cross-examine petitioner. Any other witnesses may testify in person at the hearing.
REVERSED AND REMANDED.
TOAL, C.J., WALLER, PLEICONES, BEATTY and KITTREDGE, JJ., concur.