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Appellant Greg Issac appealed a trial court ruling that denied his request for a hearing to determine whether he was immune from prosecution under the Protection of Persons and Property Act. Appellant was indicted for murder, first degree burglary, attempted armed robbery and criminal conspiracy. Appellant contended that he was not afforded a hearing on his immunity issue. The trial court determined the Act did not apply to this case as a matter of law, specifically, that the intent of the Act was not to protect intruders and afford immunity to them or those who might enter the dwelling of another to commit a criminal act. Appellant argued on appeal to the Supreme Court that the trial court's order was immediately appealable. The Supreme Court disagreed and dismissed Appellant's appeal.
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THE STATE OF SOUTH CAROLINA
In The Supreme Court
The State, Respondent,
Greg K. Isaac, Appellant.
Appellate Case No. 2013-001464
Appeal From Richland County
Clifton Newman, Circuit Court Judge
Opinion No. 27302
Submitted August 7, 2013 – Filed August 21, 2013
Mark E. Schnee, of Columbia, for Appellant.
Attorney General Alan Wilson, Chief Deputy Attorney
General John W. McIntosh, Senior Assistant Deputy
Attorney General Donald J. Zelenka; Solicitor Daniel E.
Johnson, and Deputy Solicitor Kathryn Campbell
Hubbird; all of Columbia, for Respondent.
CHIEF JUSTICE TOAL: Appellant has appealed the ruling of the trial judge
denying his request for a hearing to determine whether he was immune from
prosecution under the Protection of Persons and Property Act (the Act).1 This
Court expedited this matter so that it could be decided without an excessive delay
of the trial. We dismiss the appeal.
S.C. Code §§ 16-11-410 to -450 (Supp. 2012).
On October 27, 2005, Tavares World, an acquaintance of Appellant's, asked
Appellant to help him get money the victim owed to him. According to Appellant,
he refused until World pointed a gun at him2 and threatened to kill him if he did
not accompany World to the victim's apartment. Thereafter, Appellant agreed, and
World gave him the .380 caliber handgun.
The victim was not at home when Appellant and World first arrived at the victim's
apartment,3 so the pair waited in World's vehicle in the parking lot for fifteen to
twenty minutes before seeing the victim returned home. After the victim returned,
Appellant and World remained in the vehicle for an additional ten to fifteen
minutes before again approaching the victim's apartment.
When Appellant and World subsequently arrived at the victim's apartment door,
World beat on and kicked the door to the victim's apartment until it opened. World
entered the victim's apartment yelling "where my money at?," while Appellant
initially remained outside. During the ensuing fight between World and the victim,
Appellant entered the victim's apartment and attempted to intervene. When
Appellant's attempts to diffuse the situation were unsuccessful, Appellant exited
the victim's apartment but remained nearby, directly outside the apartment's door.
Thereafter, Appellant saw World running from the victim's apartment with the
victim chasing him. Although Appellant had not seen World or the victim draw a
gun during the altercation, Appellant subsequently drew the .380 caliber handgun
World had given him and shot the victim three times. The victim fell to the ground
and died. World and Appellant then fled the apartment and were not apprehended
According to Appellant, World was armed with two guns—a nine millimeter and
a .380 caliber handgun.
According to Appellant, upon initially arriving at the victim's apartment complex,
Appellant and World got out of the car and "walked by the [victim]'s house . . .
looking all through the windows."
Appellant was arrested in April 2012 after a fingerprint found on a lamp inside
the victim's apartment matched Appellant's. Despite Appellant's contention that he
agreed to accompany World only as a result of duress, at no time in the intervening
seven years did Appellant contact law enforcement regarding the incident.
Appellant was indicted for murder, first degree burglary, attempted armed robbery,
and criminal conspiracy. At the beginning of trial, Appellant moved for a hearing
to determine whether he was immune from prosecution under the Act. Despite
Appellant's contention that he was not afforded a hearing, the able trial judge held
a full hearing, at which Appellant testified, and determined the Act did not apply to
this case as a matter of law. Specifically, the trial judge found the intent of the Act
"is not to protect intruders and [afford] any immunity or protection to intruders or
those who might enter the dwelling of another to commit a criminal act."
Accordingly, the trial judge denied Appellant's request for immunity.
Appellant asserts the order of the trial judge denying his request for immunity
under the Act is immediately appealable. We disagree.
The right to appeal a criminal conviction is conferred by section 14-3-330 of the
South Carolina Code. In order to exercise the right to appeal, a defendant must
come within the terms of the statute. State v. Miller, 289 S.C. 426, 427, 346 S.E.2d
705, 706 (1986). An order denying a request for immunity under the Act does not
fall within any category of orders which are immediately appealable under section
Pursuant to section 14-3-330, an immediate appeal may be taken in a law case
(1) Any intermediate judgment, order or decree in a law case
involving the merits in actions commenced in the court of common
pleas and general sessions, brought there by original process or
removed there from any inferior court or jurisdiction, and final
judgments in such actions; provided, that if no appeal be taken until
final judgment is entered the court may upon appeal from such final
judgment review any intermediate order or decree necessarily
affecting the judgment not before appealed from;
(2) An order affecting a substantial right made in an action when such
order (a) in effect determines the action and prevents a judgment from
which an appeal might be taken or discontinues the action, (b) grants
or refuses a new trial or (c) strikes out an answer or any part thereof or
any pleading in any action;
(3) A final order affecting a substantial right made in any special
proceeding or upon a summary application in any action after
(4) An interlocutory order or decree in a court of common pleas
granting, continuing, modifying, or refusing an injunction or granting,
continuing, modifying, or refusing the appointment of a receiver.
This Court concluded in State v. Duncan, 392 S.C. 404, 709 S.E.2d 662 (2011),
that an order granting a motion to dismiss on the ground that the defendant is
immune under the Act is immediately appealable. Although we indicated in
Duncan that an immediate appeal is allowed because the order is in the nature of
an injunction, we now clarify that an order granting a request for immunity under
the Act is immediately appealable because it is a final order in the case.5 However,
an order denying a request for immunity is not a final order in the case.
An order involving the merits "must finally determine some substantial matter
forming the whole or a part of some cause of action or defense." Mid-State
Distrib., Inc. v. Century Imp., Inc., 310 S.C. 330, 334, 426 S.E.2d 777, 780 (1993).
An order denying an immunity request is not an order involving the merits in that it
does not finally determine a substantial cause of action or defense. Accordingly, it
is not immediately appealable under section 14-3-330(1).
Further, an order denying a motion to dismiss under the Act is not an interlocutory
order or decree in a court of common pleas granting, continuing, modifying, or
refusing an injunction or granting, continuing, modifying, or refusing the
appointment of a receiver under section 14-3-330(4).
This Court has held that, generally, a criminal defendant may not appeal until
sentence is imposed. See In re Lorenzo B., 307 S.C. 439, 439, 415 S.E.2d 795
(1992) (an order adjudicating a juvenile delinquent is not appealable until
imposition of final judgment at the dispositional hearing); Parsons v. State, 289
We note that an injunction is an equitable remedy available only when there is no
adequate remedy at law. See Strategic Res. Co. v. BCS Life Ins. Co., 367 S.C. 540,
545, 627 S.E.2d 687, 689 (2006) (noting an appeal is an adequate remedy at law,
which precludes injunctive relief). Further, a criminal action is one at law and one
which can be appealed following conviction and sentencing. See State v. Thrift,
312 S.C. 282, 292, 440 S.E.2d 341, 347 (1994) (noting a criminal action is one at
law); State v. Miller, 289 S.C. 426, 346 S.E.2d 705 (1986) (noting that a criminal
defendant may appeal after a sentence has been imposed).
S.C. 542, 542, 347 S.E.2d 504, 504 (1986) (denial of bail pending trial is not
immediately appealable); Miller, 289 S.C. at 427, 346 S.E.2d at 706 (denial of a
claim of double jeopardy is not immediately appealable); State v. Washington, 285
S.C. 457, 458, 330 S.E.2d 289, 289 (1985) (a conviction at a trial in absentia prior
to imposition of sentence is not immediately appealable); State v. Dingle, 279 S.C.
278, 282, 306 S.E.2d 223, 225 (1983), abrogated on other grounds, Horton v.
California, 496 U.S. 128 (1990) (an order committing the defendant to the
Department of Mental Health is not immediately appealable); State v. Hubbard,
277 S.C. 568, 569, 290 S.E.2d 817, 817 (1982) (the denial of a motion to suppress
evidence is not immediately appealable ); State v. Lockhart, 275 S.C. 160, 161, 267
S.E.2d 720, 720 (1980) (an order transferring jurisdiction over a juvenile from
family court to general sessions court is not immediately appealable); State v.
Parker, 267 S.C. 317, 323, 227 S.E.2d 677, 679 (1976) (the denial of a motion to
quash an indictment is not immediately appealable).
As stated in State v. Hughes:
It is a bad practice, and generally condemned, to hear appeals by
piecemeal, especially in criminal cases; for it is destructive of the
prompt administration of justice, which is so essential to the peace of
society. To allow appeals to be heard from such preliminary rulings
would enable a party charged with the most serious crime always to
secure a continuance, when otherwise not entitled to it, by simply
moving to quash the indictment, and, when his motion is overruled,
give notice of appeal from such ruling, and thereby stop the trial . . . .
56 S.C. 540, 35 S.E. 214, 215 (1900).
The denial of a request for immunity under the Act is analogous to the denial of a
motion to dismiss a criminal case on the ground of double jeopardy, which is not
immediately appealable. Miller, 289 S.C. at 427, 346 S.E.2d at 706. Absent an
unambiguous expression of legislative intent, we see no reason to alter settled law
concerning appealability, which additionally would have the illogical effect of
elevating a statutory immunity claim over one constitutionally based.
Appellant cites State v. Marin, Op. No. 5156 (S.C. Ct. App. filed July 3, 2013), for
his argument that he cannot preserve the issue for review unless he immediately
appeals the ruling of the trial judge in this matter. However, Marin does not
require an immediate appeal from the denial of a request for immunity. That
decision refers only to the fact that the determination is made prior to trial. The
Marin decision does not purport to create a right to an immediate appeal when the
circuit court determines a defendant is not entitled to immunity. Instead, any error
in the denial of a request for immunity from prosecution may be raised on appeal
after conviction and sentencing based on the plain language of section 14-3-330(1).
The concurring opinion claims the General Assembly clearly manifested its intent
in the Act to dictate an immediate appeal from the denial of a motion for
immunity, transforming the Act's purpose in finding an unmistakable expression of
legislative intent to mandate an immediate appeal from the denial of an accused's
motion pursuant to the Act. In doing so, the concurrence suggests that the
prefatory language of the Act allows this Court to interpret section 14-3-330 to
create a nonexistent right to immediate appeal based on a denial of immunity under
the Act. We have no quarrel with the concurring opinion's reading of the purpose
of the Act. However, we do part company with the concurrence in its
extrapolation of a legislatively mandated immediate appeal from the denial of an
immunity motion under the Act. The suggestion that such legislative intent is clear
from the statutory language borders on frivolity. Indeed, there are many matters on
which the Act is silent, which this Court sought to answer in State v. Duncan, 392
S.C. 404, 709 S.E.2d 662 (2011). As noted in Duncan, "the Act does not explicitly
provide a procedure for determining immunity." If the concurring opinion's
clairvoyance is correct, we invite the General Assembly to amend the Act to reflect
its intent to allow an immediate appeal in clear terms.
Further, the concurring opinion's reliance on section 14-3-330(4), which allows an
immediate appeal from an order granting or denying an injunction, is misplaced as
that section only applies "in the court of common pleas." Although the General
Assembly specifically references the court of general sessions in section 14-3330(1), it did not provide for immediate appeals in cases similar in nature to an
injunction in general sessions court. We cannot see how the legislative intent set
forth in section 16-11-410 justifies the concurring opinion's extrapolation of the
clear and unambiguous language in section 14-3-330(4), referring only to "a court
of common pleas," to also include a court of general sessions.
In conclusion, the language in State v. Duncan addressing appealability was dicta
and regrettable. We, therefore, clarify State v. Duncan, and hold the denial of a
request for immunity under the Act is not immediately appealable. 6
In light of the concurring opinion's reference to extraordinary writs, we caution
the Bench and the Bar that such writs are aptly named, as they are intended only
for the most extraordinary and exceptional situations. See In re Breast Implant
Prod. Liab. Litig., 331 S.C. at 543, 503 S.E.2d at 447 ("Although we will not
Although Appellant was not arrested until April 2012, and his trial did not
commence until July 8, 2013, the crimes with which he was charged were
committed on October 27, 2005. The effective date of the Act is June 9, 2006.
Appellant contends that the Act should be applied retroactively since his trial
began after the effective date of the Act.
The retrospective application of a statute is not favored, and statutes are presumed
to be prospective in effect. State v. Dickey, 380 S.C. 384, 404, 669 S.E.2d 917,
928 (Ct. App. 2008), rev'd on other grounds, 394 S.C. 491, 716 S.E.2d 97 (2011).
Legislative intent is paramount in determining whether a statute will have
prospective or retroactive application. Jenkins v. Meares, 302 S.C. 142, 146, 394
S.E.2d 317, 319 (1990). A statute is not to be applied retroactively unless that
result is so clearly compelled as to leave no room for doubt. Am. Nat. Fire Ins. Co.
v. Smith Grading & Paving, 317 S.C. 445, 448, 454 S.E.2d 897, 899 (1995).
As stated by the Court of Appeals in State v. Bolin, 381 S.C. 557, 673 S.E.2d 885
(Ct. App. 2009), there is no evidence of legislative intent that the Act be applied
retroactively. Instead, the savings clause of the Act specifically indicates the
General Assembly's intent that the Act be applied prospectively. Section 4 of the
generally accept matters on a writ of certiorari that can be entertained in the trial
court or on appeal, a writ of certiorari may be issued when exceptional
circumstances exist."). We stress that denial of immunity under the Act will not
meet this high threshold absent a showing of truly extraordinary circumstances,
and we seek to discourage unsuccessful defendants from seeking such writs.
We further note that, in South Carolina, a writ of prohibition is not an appropriate
remedy for criminal defendants denied immunity under the Act. This is so because
"it has been settled in this state from an early period that . . . if the inferior court or
tribunal has jurisdiction of the person and subject-matter of the controversy, the
writ [of prohibition] will not lie to correct errors and irregularities in procedure, or
to prevent an erroneous decision . . . ." New South Life Ins. Co. v. Lindsay, 258
S.C. 198, 199-200, 187 S.E.2d 794, 796 (1972) (quoting Ex Parte Jones, 160 S.C.
63, 158 S.E. 134, 137 (1931)). "There is no dispute that the circuit court qualifies
as a court of general criminal jurisdiction under the South Carolina Constitution."
State v. Odom, 382 S.C. 144, 150, 676 S.E.2d 124, 127 (2009) (citing S.C. Const.
art. V, § 11).
The repeal or amendment by this act of any law, whether temporary or
permanent or civil or criminal, does not affect pending actions, rights,
duties, or liabilities founded thereon, or alter, discharge, release or
extinguish any penalty, forfeiture, or liability incurred under the
repealed or amended law, unless the repealed or amended provision
shall so expressly provide. After the effective date of this act, all laws
repealed or amended by this act must be taken and treated as
remaining in full force and effect for the purpose of sustaining any
pending or vested right, civil action, special proceeding, criminal
prosecution, or appeal existing as of the effective date of this act, and
for the enforcement of rights, duties, penalties, forfeitures, and
liabilities as they stood under the repealed or amended laws.
Act No. 379, § 4, 2006 S.C. Acts 2913.
This identical savings clause was the basis for this Court's decisions in State v.
Dawson, 402 S.C. 160, 740 S.E.2d 501 (2013), and State v. Brown, 402 S.C. 119,
740 S.E.2d 493 (2013). In both Dawson and Brown, we held the General
Assembly did not intend for amended versions of statutes defining crimes and the
penalties to be applied retroactively; rather, the law in effect at the time the crimes
were committed controlled. Similarly, by stating that the Act is to have no effect
on pending actions, criminal prosecutions, rights, duties, or liabilities, and that all
laws repealed or amended by the Act must be treated as remaining in full force and
effect, the General Assembly clearly specified the Act is to be applied
Because the savings clause indicates the General Assembly did not intend for the
Act to affect the rights and liabilities in effect prior to its enactment, Appellant
cannot claim the benefit of the extension of the law.
Because the General Assembly did not intend for the Act to apply to a shooting
that occurred prior to the Act's effective date and because the denial of a
defendant's request for immunity under the Act is an interlocutory order not subject
to immediate appeal, this appeal is dismissed and the matter is remanded for trial.
BEATTY, KITTREDGE, and HEARN, JJ., concur.
concurring in separate opinion.
JUSTICE PLEICONES: I concur in the decision to dismiss this appeal
because the Act does not apply retroactively and thus appellant is not entitled
to invoke its protections. E.g. State v. Dawson, 402 S.C. 160, 740 S.E.2d
501(2013). I would hold, however, that a pretrial order denying immunity
under the Act is immediately appealable under S.C. Code Ann. § 14-3-330
(4) (Supp. 2012) because it is in the nature of an injunction.7
The General Assembly, as is its prerogative, has codified and modified what
was at common law a defense, and instructed that a person who establishes
that defense may not be criminally prosecuted. The legislature has
unequivocally expressed its intent that persons who are rightfully within the
Act's terms are immune from prosecution. Section 16-11-420 of the Act is
titled "Intent and Findings of General Assembly," and provides in part:
The General Assembly finds that it is proper for lawabiding citizens to protect themselves, their families, and
others from intruders and attackers without fear of
prosecution or civil action for acting in defense of
themselves and others.
§ 16-11-420(B) (Supp. 2012) (emphasis supplied).
Lest there be any doubt of the legislature's intent, § 16-11-450 of the Act is
titled in part "Immunity from criminal prosecution . . . ." and provides in
relevant part "A person who uses deadly force as permitted by the provisions
of this article or another applicable provision of law is justified in using
deadly force and is immune from criminal prosecution . . . . " § 16-11450(A) (Supp. 2012) (emphasis supplied). In my view, we can honor the
General Assembly's clear mandate only if we can review any pre-trial denial
of criminal immunity for reversible error, for to require a defendant wrongly
denied immunity to endure a criminal prosecution is to violate the statutory
The Court of General Session has subject matter jurisdiction to issue injunctions
where necessary to protect its proceedings. Ex parte: The State-Record Co., Inc.,
332 S.C. 346, 504 S.E.2d 592 (1998).
I readily acknowledge that an order denying a criminal defendant pre-trial
immunity does not fit neatly within our general appealability jurisprudence.
In order to effectuate the General Assembly's explicit instruction, I would
read the term "common pleas" in § 14-3-330(4), allowing immediate appeals
from injunctions, as "trial court" in order to permit this interlocutory appeal
from the Court of General Sessions.8 This broad reading of the statute is not
unique, however, as the appellate courts regularly apply § 14-3-330, which
by its title only governs law cases, to equity matters arising from the family
courts. E.g. Terry v. Terry, 400 S.C. 453, 734 S.E.2d 646 (2012); Smith v.
Smith, 359 S.C. 393, 597 S.E.2d 188 (Ct. App. 2004).
It is the legislature's prerogative to dictate appealability, and the intent that a
person within the Act's terms be immune from criminal prosecution is clear
and unequivocal. I therefore respectfully dissent from the decision holding
that a criminal defendant denied immunity must nonetheless submit to
prosecution and, if convicted, then seek review of the order denying him the
very protection afforded him under the Act.
In light of the majority's decision that a pretrial order denying a criminal
defendant immunity under the Act is not immediately appealable, an individual in
that position may now seek relief by filing a common law petition for writ of
certiorari in this Court's original jurisdiction. E.g. City of Columbia v. S.C. Pub.
Serv. Comm'n, 242 S.C. 528, 131 S.E.2d 705 (1963). Depending on the
individual's circumstances, it is possible that she may invoke other extraordinary
writs to prevent her wrongful criminal prosecution.