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2011-MO-030 - Ward 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


Juan M. Ward, Petitioner,

v.

State of South Carolina, Respondent.


ON WRIT OF CERTIORARI


Appeal From Richland County
James R. Barber, Circuit Court Judge


Memorandum Opinion No.  2011-MO-030
Submitted October 18, 2011 – Filed October 24, 2011 


REVERSED


Appellate Defender Elizabeth A. Franklin-Best, of South Carolina Commission on Indigent Defense, of Columbia, for Petitioner.

Attorney General Alan Wilson, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley Elliott, Assistant Attorney General Brian T. Petrano, all of Columbia, for Respondent.


PER CURIAM:  Petitioner seeks a writ of certiorari from the dismissal, after a hearing, of petitioner's post-conviction relief (PCR) application.  We grant the petition for a writ of certiorari, dispense with further briefing, and reverse. 

FACTUAL/PROCEDURAL BACKGROUND

Petitioner pled guilty on July 18, 2007 to possession with intent to distribute (PWID) crack cocaine, second offense, and unlawful carrying of a pistol, for which he received concurrent sentences of five years' imprisonment and one year imprisonment, respectively.  No direct appeal was taken.  Petitioner mailed his PCR application, which alleged that his guilty plea was involuntary and that plea counsel was ineffective, via certified mail to the Richland County Clerk of Court on July 11, 2008.  However, the application was not stamped as "filed" by the Richland County Clerk of Court until July 30, 2008.  Accordingly, the State moved to dismiss the application as untimely pursuant to S.C. Code Ann. § 17-27-45(A) (2003).

The PCR judge concluded the application was filed on July 30, 2008, regardless of the date on which petitioner alleged it was mailed.  The PCR judge further found the registered mail receipt indicated the application was mailed and postmarked on July 16, 2008, not July 11, 2008.[1]  Noting that mailing does not constitute filing in the case of a PCR application, but instead, the application is considered filed when it is delivered to and

received by the proper officer, the PCR judge found the application was filed outside of the statute of limitations.  Accordingly, the PCR judge issued a final order denying and dismissing the application.

ISSUE

Did the PCR judge err in dismissing petitioner's PCR application as untimely?

LAW/ANALYSIS

A PCR application must be filed within one year after conviction or within one year after the sending of the remittitur to the lower court from an appeal.  S.C. Code Ann. § 17-27-45(A) (2003).  A PCR application must be filed with the clerk of court in which the conviction took place.  S.C. Code Ann. § 17-27-40 (2003).  Mailing does not constitute filing for a PCR application.  Gary v. State, 347 S.C. 627, 629, 557 S.E.2d 662, 663 (2001).  Instead, a PCR application is considered filed when it is delivered to and received by the clerk of court.  Id.

We find the PCR judge erred in finding petitioner's application was untimely.  Petitioner's certified mail receipt clearly states petitioner's PCR application was delivered to the Main Post Office in Columbia and was signed for on July 16, 2008.  Therefore, we find the application was delivered to and received by the proper officer within the one-year statute of limitations.  See §17-27-45(A); Gary, 347 S.C. at 629, 557 S.E.2d at 663.

CONCLUSION

Because petitioner filed his PCR application within the one-year statute of limitations, we grant the petition for a writ of certiorari, dispense with further briefing, and reverse the PCR judge's finding that the application was untimely. 

REVERSED.

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


[1] This finding is not supported by the record because petitioner’s original receipt is stamped “Bennettsville” and the return receipt is stamped by the post office in Columbia on July 16, 2008.