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2009-MO-002 - Rose 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

Alan Duane Rose, Petitioner,

v.

State of South Carolina, Respondent.


ON WRIT OF CERTIORARI


Appeal From Spartanburg County
 J. Derham Cole, Post Conviction Relief Judge


Memorandum Opinion No. 2009-MO-002
Submitted January 7, 2009 – Filed January 12, 2009  


AFFIRMED


Appellate Defender Robert M. Pachak, 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 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 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 contends he did not knowingly and intelligently waive his Fifth Amendment right not to testify at trial because the trial judge informed him of this right in the presence of the jury. 

Although the trial judge did inform petitioner, in the presence of the jury, of his right not to testify, no objection was made.  Thus, this issue is not preserved for review.  State v. Hoffman, 312 S.C. 386, 440 S.E.2d 869 (1994) (a contemporaneous objection is required to properly preserve an error for appellate review).  We affirm petitioner’s convictions and sentences.

AFFIRMED.

TOAL, C.J., WALLER, PLEICONES, BEATTY and KITTREDGE, JJ., concur.