Hicks v. State

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

Lamar Capress Hicks,        Petitioner,

v.

State of South Carolina,        Respondent.

ON WRIT OF CERTIORARI

Appeal From Anderson County
Frank Eppes, Circuit Judge
John M. Milling, Post-Conviction Relief Judge

Memorandum Opinion No. 2004-MO-034
Submitted June 8, 2004 - Filed June 28, 2004

DISMISSED

Assistant Appellate Defender Tara S. Taggart, S.C. Office of Appellate Defense, of Columbia, for Petitioner.

Attorney General Henry D. McMaster, Chief Deputy Attorney General John W. McIntosh, and Assistant Deputy Attorney General Allen Bullard, all of Columbia, for Respondent.

PER CURIAM:  The circuit court, on May 21, 1999, revoked Petitioner's probation and activated ten years of a previously imposed twenty-year sentence for second-degree criminal sexual conduct with a minor.  Petitioner did not appeal, but on September 27, 1999, filed an application for post-conviction relief (PCR).

Petitioner seeks a writ of certiorari from the decision of the PCR judge granting him the right to file a belated appeal.  See Davis v. State, 288 S.C. 290, 342 S.E.2d 60 (1986); White v. State, 263 S.C. 110, 208 S.E.2d 35 (1974); Rule 227(h), SCACR.  Petitioner's appellate counsel has filed an Anders brief challenging the revocation of his probation and seeking a new revocation hearing.  The State has filed a return opposing the petition for a writ of certiorari, but has not filed a brief in the appeal.  Petitioner has not filed a pro se response.

Because there is sufficient evidence of probative value to support the PCR judge's finding that petitioner did not knowingly and intelligently waive his right to a direct appeal, we grant certiorari and proceed with a review of the direct appeal.

After a thorough review of the record pursuant to Anders v. California, 386 U.S. 738 (1967), and State v. Williams, 305 S.C. 116, 406 S.E.2d 357 (1991), we dismiss the appeal and grant counsel's petition to be relieved.

DISMISSED.

TOAL, C.J., MOORE, WALLER, BURNETT and PLEICONES, JJ., concur.