Simuel v. State of SC

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Supreme Court

Demarcus Simuel, Petitioner,

v.

State of South Carolina, Respondent.

ON WRIT OF CERTIORARI

Appeal From Union County
Lee S. Alford, Trial Judge
James R. Barber, Post-Conviction Judge

Memorandum Opinion No. 2011-MO-007
Submitted March 1, 2011 Filed March 7, 2011

AFFIRMED

Appellate Defender LaNelle C. DuRant, South Carolina Commission on Indigent Defense, Division of Appellate Defense, of Columbia, for Petitioner.

Attorney General Alan Wilson, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, and Assistant Attorney General Ashley McMahan, all of the Office of the Attorney General, of Columbia, for Respondent.

PER CURIAM:  Petitioner was convicted of possession with intent to distribute crack cocaine, third offense.  He was sentenced to imprisonment for twelve years.  No direct appeal was taken.

Petitioner filed an application for post-conviction relief (PCR) seeking a belated direct appeal, which was denied following a hearing.  This Court granted petitioner's petition for a writ of certiorari and reversed the PCR judge's determination that petitioner was not entitled to a belated direct appeal.  Simuel v. State, 390 S.C. 267, 701 S.E.2d 738 (2010).  The parties have now briefed the direct appeal issue. 

We affirm pursuant to Rule 220(b)(1), SCACR, and the following authorities: State v. Landon, 370 S.C. 103, 634 S.E.2d 660 (2006) (holding a violation of Rule 5, SCRCrimP, is not reversible unless prejudice is shown); State v. Trotter, 322 S.C. 537, 473 S.E.2d 452 (1996) (holding the proper remedy when a party fails to comply with Rule 5 is to permit the discovery or inspection, grant a continuance, or prohibit the party from introducing the undisclosed evidence, or such other order as it deems just under the circumstances); State v. Salisbury, 330 S.C. 250, 498 S.E.2d 655 (Ct. App. 1998) (holding the denial of a motion to suppress evidence based on a Rule 5 violation is within the discretion of the trial judge and will not be disturbed absent an abuse of discretion); State v. Stahlnecker, 386 S.C. 609, 690 S.E.2d 565 (2010) ("For an issue to be properly preserved it has to be raised to and ruled on by the trial court.").

AFFIRMED. 

TOAL, C.J., PLEICONES, BEATTY, KITTREDGE and HEARN, JJ., concur.