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South Carolina
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The Supreme Court of South Carolina
JEAN HOEFER TOAL
CHIEF JUSTICE
                   
POST OFFICE DRAWER 12456
COLUMBIA, SOUTH CAROLINA 29211
TELEPHONE: (803) 734-1584
FAX: (803) 734-1167

August 13, 2003

TO:
FROM:
DATE:

RE:

All Circuit Court Judges
Chief Justice Jean H. Toal
August 15, 2003

Appointment of Counsel in Capital Post-Conviction Relief Matters.

Recently, issues have arisen over the nature of the qualifications required of attorneys appointed to represent petitioners in post-conviction relief (PCR) matters. South Carolina Code Ann. § 17-27-160 sets forth the qualifications necessary for an attorney to represent a petitioner in a capital PCR and, a dispute has arisen over the interpretation of the requirement that an appointed attorney: "have successfully completed, within the previous two years, not less than twelve hours of South Carolina Bar approved continuing legal education or professional training primarily involving advocacy in the field of capital appellate and/or post-conviction defense." § 17-27-160(B).

It is my opinion that the second clause: or professional training primarily involving advocacy in the field of capital appellate and/or post-conviction defense does not modify the first clause but is a separate way to become qualified under the rule. To otherwise read the statute would lead to the absurd result that an attorney qualified to represent a defendant in the trial of a capital case1 would not necessarily be qualified to represent a petitioner in a capital PCR proceeding. I do not believe that the intent of the Legislature was to create such a situation when it enacted § 17-27-160. Accordingly, anyone who is qualified to represent a capital defendant at trial, and has completed their CLE requirements should be deemed qualified to represent a petitioner in a capital PCR proceeding under § 17-27-160.

1To be qualified to represent a defendant in a capital trial, one of the attorneys must have at least five years experience as a licensed attorney and at least three years' experience in the actual trial of felony cases.