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Gamble v. State

Supreme Court of South Carolina
Apr 10, 1989
298 S.C. 176 (S.C. 1989)

Summary

holding that the PCR rules "contemplate an adjudication on the merits of the original petition, one bite of the apple as it were."

Summary of this case from Pettinato v. Eagleton

Opinion

22999

Submitted February 21, 1989.

Decided April 10, 1989.

Chief Deputy Atty. Elizabeth C. Fullwood, of S.C. Office of Appellate Defense, Columbia, for petitioner. Atty. Gen. T. Travis Medlock, Chief Deputy Atty. Gen. Donald J. Zelenka and Staff Atty. Delbert H. Singleton, Jr., Columbia, for respondent.


Submitted Feb. 21, 1989.

Decided April 10, 1989.


The lower court dismissed this post-conviction relief application, holding it was a successive application and thus barred by Supreme Court Rule 50(3) and S.C. Code Ann. § 17-27-90. We reverse.

In June 1985, Lloyd Gamble was convicted for conspiracy, trafficking in cocaine, possession of cocaine and possession of cocaine with intent to distribute. Gamble made a direct appeal to this Court which was dismissed December 17, 1985 for failure to perfect it. Gamble filed an application for post-conviction relief December 9, 1985. Before this application was heard on its merits, in May of 1986, Gamble contacted his appointed counsel and requested the pending application be withdrawn. Counsel requested the application's withdrawal and the Circuit Court ordered the dismissal in May 1986. This order recited that the State agreed to the dismissal but did not state that the application was to be dismissed with prejudice.

Gamble filed the present post-conviction relief application March 12, 1987. The grounds which Gamble asserts for relief under the present application were available to him when he made his first application. The Circuit Court dismissed the present application by Order dated November 4, 1987, following an evidentiary hearing, holding the application was barred as successive under Supreme Court Rule 50(3) and S.C. Code Ann. § 17-27-90.

Petitions for post-conviction relief are civil actions. Supreme Court Rule 50(7). The South Carolina Rules of Civil Procedure are applicable to all civil actions. Rule 1, SCRCP. Applicable civil practice rules are specifically incorporated by statute into post-conviction practice. S.C. Code Ann. § 17-27-80.

The voluntary dismissal of an action by a plaintiff with the consent of the opposing party is without prejudice unless otherwise stated in the notice of dismissal or stipulation. Rule 41(a)(1), SCRCP.

The lower court dismissed Gamble's first petition prior to adjudication on the merits with the consent of the State. The Order did not state the application was dismissed with prejudice. Therefore, Gamble was entitled to make another petition.

Neither Supreme Court Rule 50(3) nor S.C. Code Ann. § 17-27-90 acts to bar, as successive, Gamble's current petition. South Carolina's Uniform Post-Conviction Procedure Act, § 17-27-90, states:

"All grounds for relief available to an applicant under this chapter must be raised in his original, supplemental or amended application. Any ground finally adjudicated or not so raised, or knowingly, voluntarily and intelligently waived in the proceeding that resulted in the conviction or sentence or in any other proceeding the applicant has taken to secure relief, may not be the basis for a subsequent application, unless the court finds a ground for relief asserted which for sufficient reason was not asserted or was inadequately raised in the original, supplemental or amended application."

South Carolina's Supreme Court Rule 50(3) states:

". . . successive applications for relief are not to be entertained, and the burden shall be on the applicant to establish that any new ground raised in a subsequent application could not have been raised by him in the previous application."

These rules, while barring subsequent petitions on grounds available to or waived by an applicant in a prior action or petition, contemplate an adjudication on the merits of the original petition, one bite at the apple as it were. These rules will not be construed to operate as a trap for the unwary.

Reversed and remanded.

GREGORY, C.J., and HARWELL, CHANDLER and FINNEY, JJ., concur.


Summaries of

Gamble v. State

Supreme Court of South Carolina
Apr 10, 1989
298 S.C. 176 (S.C. 1989)

holding that the PCR rules "contemplate an adjudication on the merits of the original petition, one bite of the apple as it were."

Summary of this case from Pettinato v. Eagleton

holding the South Carolina Rules of Civil Procedure apply to all civil actions, a petition for PCR is a civil action, the Act specifically incorporates the applicable rules of civil practice, and Rule 41 of the South Carolina Rules of Civil Procedure applies to PCR petitions

Summary of this case from Hiott v. State

allowing a successive PCR application where the applicant unknowingly withdrew his first PCR application with prejudice

Summary of this case from Bryant v. Stirling

stating that S.C. Code Ann. § 17-27-90 and South Carolina's Supreme Court Rule 50 bars subsequent petitions based on claims available to or waived by an applicant in a prior action where the applicant's claims were adjudicated on the merits

Summary of this case from Sturkey v. Eagleton

allowing a successive PCR application where the applicant unknowingly withdrew his first PCR application with prejudice

Summary of this case from Woods v. State

stating rules applicable to post-conviction relief actions should not be construed in manner which operate as a trap for the unwary lawyer

Summary of this case from In re November 4, 2008 Bluffton Elec

stating rules applicable to post-conviction relief actions should not be construed in manner which operate as a trap for the unwary or deprive an applicant of the adjudication on the merits of his original petition

Summary of this case from Elam v. South Carolina Department of Transportation
Case details for

Gamble v. State

Case Details

Full title:Lloyd GAMBLE, Petitioner v. STATE of South Carolina, Respondent

Court:Supreme Court of South Carolina

Date published: Apr 10, 1989

Citations

298 S.C. 176 (S.C. 1989)
379 S.E.2d 118

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