McCray 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

Vander McCray, Petitioner,

v.

State of South Carolina, Respondent.

ON WRIT OF CERTIORARI

Appeal From Horry County
Roger M. Young, Trial Judge
John L. Breeden, Jr., Post-Conviction Judge

Memorandum Opinion No. 2008-MO-006
Submitted January 23, 2008 Filed January 28, 2008                  

REVERSED AND REMANDED

Appellate Defender Kathrine H. Hudgins, South Carolina Commission on Indigent Defense, Division of Appellate Defense, of Columbia, for Petitioner.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, and Assistant Attorney General Dean Grigg, 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 deny the petition as to petitioner's Question 2.

Because there is sufficient evidence to support the PCR judge's finding that petitioner did not knowingly and intelligently waive his right to a direct appeal, we grant certiorari on petitioner's Question 1, dispense with further briefing, and proceed with a review of the direct appeal issue pursuant to Davis v. State, 288 S.C. 290, 342 S.E.2d 60 (1986).

Petitioner argues the trial judge erred in trying him in absentia when there was evidence his failure to appear for trial was not willful.  Petitioner further argues the trial judge failed to make a finding that petitioner had been warned he would be tried in his absence should he fail to appear.  We hold the trial judge failed to make a finding that petitioner was warned the trial would proceed in his absence if he failed to appear.  Rule 16, SCRCrimP; State v. Castineira, 341 S.C. 619, 535 S.E.2d 449 (Ct. App. 2000).  Accordingly, we reverse petitioner's convictions and remand for a new trial.

REVERSED AND REMANDED.

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