Tony Aiken 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

Tony Austin Aiken, Petitioner,

v.

State of South Carolina, Respondent.

ON WRIT OF CERTIORARI

Appeal From Pickens County
 Larry R. Patterson, Circuit Court Judge

Memorandum Opinion No. 2005-MO-051

Submitted September 26, 2005 - Filed October 10, 2005

REMANDED

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

Attorney General Henry D. McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, and Assistant Attorney General Karen C. Ratigan, all of Columbia, for Respondent.

PER CURIAM:  Petitioner seeks a writ of certiorari from the denial of his application for post-conviction relief (PCR).  We grant the petition, dispense with further briefing, and remand this matter to the PCR judge.

The PCR judge did not rule on petitioner's allegation that his counsel was ineffective in failing to challenge the DNA test results or obtain another DNA test.  Although petitioner asked the judge to make a specific ruling in his Rule 59(e), SCRCP, motion to alter or amend the judgment, the PCR judge denied the motion without ruling on this issue.

Because the allegation that counsel was ineffective in failing to challenge the DNA tests or request new tests was raised, the PCR judge erred in failing to rule on the issue.  Accordingly, we remand this matter to the PCR judge for a ruling on the issue.  Petitioner may renew his motion for new DNA testing on remand.

REMANDED.

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