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Appointment of Counsel in Post-Conviction Relief Cases

The Chief Justice has issued an administrative order regarding the appointment of counsel in post-conviction relief cases.


The Supreme Court of South Carolina

RE: Appointment of Counsel in Post-Conviction Relief Cases
  Before the Circuit Court


In post-conviction relief (PCR) cases, the appointment of counsel is appropriate only when a hearing must be held.  Rule 71.1, SCRCP (“If, after the State has filed its return, the application presents questions of law or fact which will require a hearing, the court shall promptly appoint counsel to assist the applicant if he is indigent.”); Richardson v. State, 377 S.C. 103, 659 S.E.2d 493 (2008).  I find that in many cases counsel are being appointed when the above standard has not been satisfied.

Further, in a significant number of these cases, the application is ultimately denied as being successive or as being barred by the statute of limitations.  The appointment of counsel in such cases places an unnecessary burden on the appointed counsel, and violates the mandate of Rule 608(g), SCACR, that appointments should be minimized.  To help address this problem, I find it appropriate to direct the following:

Consistent with Rule 71.1, SCRCP, counsel will not be appointed until the Post-Conviction Relief Section of the Attorney General’s Office files its return to the application.  In its return, the Attorney General’s Office shall clearly state in the caption heading whether it requests that counsel be appointed for the applicant.

If the Attorney General requests the appointment of counsel, counsel shall be appointed for the applicant unless a circuit court judge determines that it is inappropriate to do so.  The authority to make the appointments in these cases may be delegated to the Clerk of Court or some other official.

If the Attorney General opposes the appointment of counsel for an indigent applicant, counsel will only be appointed as follows:

(1)     If the Attorney General asserts that the application is barred as being successive or as being untimely under the statute of limitations,[1] counsel will not be appointed except upon written order of the Chief Judge for Administrative Purposes for the Court of Common Pleas in the circuit.  In these cases, the Chief Judge will insure that counsel is only appointed for an indigent applicant when the facts raise a material issue regarding the applicability of the rule forbidding successive applications or the statute of limitations.  Cf. Gary v. State, 347 S.C. 627, 557 S.E.2d 662 (2001) (statute of limitations).

(2)     In all other cases in which the State opposes the appointment of counsel, counsel will only be appointed upon written order of a circuit court judge under the standard contained in Rule 71.1, SCRCP.


s/                  Jean H. Toal                     

Columbia, South Carolina
October 6, 2008

[1] S.C. Code Ann. § 17-27-45 (2003).