Floyd v. State

303 S.C. 298 (1991)

400 S.E.2d 145

Darrel Juett FLOYD, Petitioner v. STATE of South Carolina, Respondent.

23315

Supreme Court of South Carolina.

Submitted October 25, 1990.

Decided January 21, 1991.

Submitted Oct. 25, 1990.

Decided Jan. 21, 1991.

Per Curiam:

This is a post-conviction relief matter. The post-conviction relief judge, who also presided at petitioner's trial, denied petitioner's *299 application for post-conviction relief. We requested the parties to brief the issue whether this Court should modify or overrule its holding in Henry v. State, 275 S.C. 148, 268 S.E. (2d) 41 (1980), that it was permissible for a judge to preside at both a trial and subsequent post-conviction proceeding involving the same criminal matter. We now grant the petition for a writ of certiorari and dispense with further briefing. Further, we overrule Henry v. State, vacate the order denying petitioner's application and remand for a new post-conviction relief hearing.

In Henry v. State, we held that, absent circumstances requiring a judge's disqualification under Canon 3(C)(1) of the Code of Judicial Conduct,[1] a petitioner was not prejudiced by having the same judge preside over both his trial and post-conviction relief hearing. Upon review of the briefs submitted by the parties, we have determined that, as a matter of policy, a per se rule of recusal is preferable to that enunciated in Henry v. State. While we do not question the ability of the trial judges in this state to remain impartial, the rule announced today will eliminate even the suggestion of partiality.

Accordingly, in all post-conviction relief hearings held after the date of this opinion, a judge shall, upon motion, recuse himself if he was the judge who presided at the guilty plea, criminal trial, or probation revocation proceeding for which relief is being sought.

Because of the unique facts in this case, we believe the same judge should not have presided over both the trial and the postconviction relief hearing. Therefore, the order denying relief is vacated and the case is remanded for a de novo hearing.

Vacated and remanded.

[1] Rule 501, SCACR.