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2008-UP-280 - Sisk 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 Court of Appeals

Steve Alvin Sisk, Petitioner,

v.

State of South Carolina, Respondent


ON WRIT OF CERTIORARI


Appeal From Fairfield County
Kenneth G. Goode, Circuit Court Judge
 John C. Hayes, III, Post-Conviction Relief Judge


Unpublished Opinion No. 2008-UP-280
Submitted April 1, 2008 – Filed June 2, 2008   


AFFIRMED


Appellate Defender Lanelle C. Durant, of Columbia, for Petitioner.

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

PER CURIAM:  Petitioner seeks a writ of certiorari from the denial of his application for post-conviction relief (PCR).

Because there is sufficient evidence to support the PCR judge’s finding that petitioner did not knowingly and intelligently waive his right to a direct appeal, we grant the petition for a writ of certiorari and proceed with a review of the direct appeal issue pursuant to Davis v. State, 288 S.C. 290, 342 S.E.2d 60 (1986).

Petitioner argues the trial judge erred in denying his motion for a mistrial.  We affirm[1] pursuant to Rule 220(b)(2), SCACR, and the following authorities:  State v. Council, 335 S.C. 1, 13, 515 S.E.2d 508, 514 (1999) (holding movant must show not only error, but resulting prejudice in order to justify a mistrial); State v. Johnson, 334 S.C. 78, 89, 512 S.E.2d 795, 801 (1999) (“A mistrial should not be ordered in every case where incompetent evidence is received.”); State v. Patterson, 337 S.C. 215, 227, 522 S.E.2d 845, 851 (Ct. App. 1999) (stating the granting of the motion for a mistrial is an extreme measure that should be taken only where an incident is so grievous that prejudicial effect can be removed in no other way); State v. Jones, 325 S.C. 310, 323, 479 S.E.2d 517, 524 (Ct. App. 1996) (holding a curative instruction is generally deemed to have cured any alleged error).

AFFIRMED.   

HUFF, KITTREDGE, and WILLIAMS, JJ., concur.


[1]  Because oral argument would not aid the court in resolving the issues on appeal, we decide this case without oral argument pursuant to Rule 215, SCACR.