Deleston v. State ( 2005 )

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS
PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Supreme Court

Dwayne C. Deleston, Petitioner-Respondent,

v.

State of South Carolina, Respondent-Petitioner.

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Appeal From Charleston County
R. Markley Dennis, Jr., Post-Conviction Relief Judge
A. Victor Rawl, Plea Judge

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Memorandum Opinion No. 2005-MO-060
Submitted November 29, 2005 - Filed December 19, 2005

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REVERSED

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Assistant Appellate Defender Eleanor Duffy Cleary, S.C. Office of Appellate Defense, of Columbia, for Petitioner-Respondent.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Donald J. Zelenka, and Senior Assistant Attorney General William Edgar Salter III, of Columbia, for Respondent-Petitioner.

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PER CURIAM:  Petitioner-respondent (Deleston) filed an application for post-conviction relief (PCR) in 2001 on his 1997 possession of cocaine conviction.  The PCR judge granted the State’s motion to dismiss Deleston’s allegations of ineffective assistance of counsel as barred by the statute of limitations.  However, the judge granted Deleston a belated review of his direct appeal issues pursuant to White v. State, 363 S.C. 110, 208 S.E.2d 35 (1974), finding that laches did not bar that allegation.  Both Deleston and the State seek writs of certiorari.

The evidence does not support the PCR judge’s finding that Deleston was entitled to a belated review of his direct appeal issues.  In addition, the judge erred in failing to find that Deleston’s application was barred by laches.  Accordingly, we grant the petitions for writs of certiorari, dispense with further briefing, and reverse the order of the PCR judge. Rogers v. State, 317 S.C. 392, 453 S.E.2d 892 (1995) (PCR judge’s findings will not be upheld if there is no probative evidence to support them).

REVERSED.

TOAL, C.J., MOORE, BURNETT and PLEICONES, JJ., concur.  WALLER, J., not participating.