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2010-MO-022 - Evans 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 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Supreme Court

Timothy L. Evans, Petitioner,

v.

State of South Carolina, Respondent.


Appeal From York County
John C. Hayes, III, Circuit Court Judge
G. Thomas Cooper, Post-Conviction Relief Judge


Memorandum Op. No.  2010-MO-022
Submitted August 18, 2010 – Filed August 23, 2010


AFFIRMED


Appellate Defender LaNelle Cantey DuRant, 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 Ashley A. McMahan, all of the Office of the Attorney General, 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 issues pursuant to Davis v. State, 288 S.C. 290, 342 S.E.2d 60 (1986).   

Petitioner’s convictions and sentences are affirmed pursuant to Rule 220(b)(1), SCACR, and the following authorities: Issue 1: State v. Johnson, 324 S.C. 38, 476 S.E.2d 681 (1996) (finding a contemporaneous objection required to preserve issues for appellate review); State v. Lynn, 277 S.C. 222, 284 S.E.2d 786 (1981) (finding an appellant’s failure to contemporaneously object to testimony that he later advanced as prejudicial following the State’s completion of its case could not be bootstrapped to a motion for a mistrial); State v. Hughes, 336 S.C. 585, 521 S.E.2d 500 (1999) (finding an appellant must show a violation of Rule 5, SCRCrimP, is prejudicial to obtain relief); State v. Gunn, 313 S.C. 124, 437 S.E.2d 75 (1993), cert. denied, 510 U.S. 1115, 114 S.Ct. 1063, 127 L.Ed.2d 383 (1994) (finding the failure to disclose materials pursuant to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), is reversible error only when its omission deprives the defendant of a fair trial) and Issue 2: State v. Turner, 373 S.C. 121, 644 S.E.2d 693 (2007) (finding an issue not preserved for review because it was not raised to and ruled on by the trial court); State v. Prioleau, 345 S.C. 404, 548 S.E.2d 213 (2001) (finding an issue not preserved for review where the party argued one ground at trial and another on appeal); State v. Baccus, 367 S.C. 41, 625 S.E.2d 216 (2006) (finding a search warrant may only be issued upon a finding of probable cause); State v. Sachs, 264 S.C. 541, 216 S.E.2d 501 (1975) (finding the neutrality requirement for issuing a search warrant requires “the issuing officer not be functioning in a capacity charged with the duty of investigating or prosecuting crimes”).

AFFIRMED.

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