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2008-UP-174 - State v. Cummins
THIS OPINION HAS NO PRECEDENTIAL VALUE

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 Court of Appeals


The State, Appellant/Respondent,

v.

Charles L. Cummins, III, Respondent/Appellant.


Appeal From Spartanburg County
Roger L. Couch, Circuit Court Judge


Unpublished Opinion No. 2008-UP-174
Submitted March 4, 2008 – Filed March 13, 2008


DISMISSED, DENIED, REMANDED


Charles H. Sheppard and Rachel D. Erwin, of Blythewood;
for Appellant-Respondent.

P. Christopher Smith, Jr. and Desa Ballard, of W. Columbia;
Robert T. Usry and Robert M. Holland, of Spartanburg;
for Respondent-Appellant.

PER CURIAM: In this cross-appeal, the defendant, Charles L. Cummins, III, appeals a magistrate’s pre-trial ruling that the videotape from the incident site of an alleged DUI should not be suppressed from evidence at trial.  The State also appeals claiming the magistrate erred in ruling the videotape of a breathalyzer test and the breathalyzer results should be suppressed from evidence at trial due to an incomplete Miranda warning.   

We dismiss Cummins’ appeal regarding the failure to suppress the videotape from the incident site of the alleged DUI pursuant to Rule 220(b)(2), SCACR, and the following authorities: see State v. Miller, 289 S.C. 426, 346 S.E.2d 705 (1986) (stating a criminal defendant may not appeal until sentence is imposed); South Carolina Code Section 14-3-330 (1976) and Rule 201(a), SCACR (stating only final judgments and limited interlocutory orders are appealable); Good v. Hartford Acc. & Indemn. Co., 201 S.C. 32, 21 S.E.2d 209, 212 (1942) (“a final judgment is one which operates to divest some right in such a manner as to put it beyond the power of the Court making the order to place the parties in their original condition after the expiration of the term; that is, it must put the case out of Court, and must be final in all matters within the pleadings”); Mid-State Distributors, Inc. v. Century Importers, Inc., 310 S.C. 330, 334, 426 S.E.2d 777, 780 (1993) (stating orders involving the merits “must finally determine some substantial matter forming the whole or a part of some cause of action or defense” and orders affecting a substantial right must “discontinue an action, prevent an appeal, grant or refuse a new trial, or strike out an action or defense”).

We deny the State’s appeal regarding suppression of the breathalyzer results and videotape of the breathalyzer test pursuant to Rule 220(b)(2), SCACR, and the following authorities: see State v. Pichardo, 367 S.C. 84, 96, 623 S.E.2d 840, 846-47 (Ct. App. 2005) (“the State’s right to appeal in a criminal case is a judicially created right”); State v. Belviso, 360 S.C. 112, 115, 600 S.E.2d 68, 70 (Ct. App. 2004) (citing State v. McKnight, 287 S.C. 167, 337 S.E.2d 208 (1985)) (“[a] pre-trial order granting the suppression of evidence which significantly impairs the prosecution of a criminal case is directly appealable under S.C. Code Ann. § 14-3-330(2)(a) (1976)”); State v. Kinner, 301 S.C. 209, 210, 391 S.E.2d 251, 252 (1990) (noting testimony of defendant’s erratic driving and strong odor of alcohol support a conviction of driving under the influence). 

Accordingly the order of the trial court is affirmed and the case is remanded for trial.

ANDERSON, SHORT, and THOMAS, JJ., concur.