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State Court Criminal Appeals in South Carolina


After an individual is convicted in South Carolina state courts, he will have three main appellate procedures available to him that he can utilize to attempt to get his conviction reversed. Before discussing those three procedures in detail, it is worthwhile to note that these procedures do not (and cannot) result in the Judge modifying or reducing the defendant’s sentence in any way. The only way to have a defendant’s sentence reduced after sentencing is to file a post-trial motion to reconsider sentence (for a detailed discussion of this procedure, click here). Each of the procedures discussed below will result in the defendant’s entire conviction and sentence being reversed, if successful. In other words, these procedures return a defendant to square one, before he went to trial.

The post-conviction procedures are broken down into the following three phases. It is almost always in a Defendant’s best interests to complete each step in sequence, for a variety of reasons.

Direct Appeal

Stage One

Post-Conviction Relief (P.C.R.)

Stage Two

Federal Habeas Corpus

Stage Three

Direct Appeal

After an individual is convicted and sentenced, his attorney must file a Notice of Appeal in the trial court and in the South Carolina Court of Appeals (note that there is a strict 10-day deadline after sentencing for filing this notice, or the right to appeal is lost!). This removes the case from the local trial court and sends it to the Court of Appeals in Columbia, South Carolina. Once the case arrives there, the parties must submit written briefs to the Court explaining their position. The Defendant will ask the Court to reverse his conviction, whereas the State (represented at this stage by the Attorney General’s Office) will argue that the Defendant’s conviction should remain in place.

On direct appeal, a Defendant may only argue about issues that appear in the transcript of proceedings at trial (note that except in very rare circumstances, a person who pleads guilty will not file a direct appeal – they will instead proceed directly to phase 2, Post-Conviction Relief). During the direct appeal phase, there are no hearings, no trials, and no opportunities to add anything to the record that wasn’t already presented to the trial court. As a result, the Defendant is typically limited to complaining about rulings made by the trial judge during their

Examples of things that a defendant can complain about on direct appeal:

  • The Judge’s denial of a motion to suppress evidence.
  • The Judge’s denial of a pre-trial ruling to exclude or admit certain kinds of evidence.
  • The trial Judge sustaining (agreeing with) an objection made by the prosecuting attorney, when the objection was incorrect.
  • The trial Judge overruling (disagreeing with) an objection made by the defense attorney, when the objection should have been sustained (agreed with).
  • The trial Judge incorrectly instructing the jury on the law.
  • The trial Judge refusing to give an instruction to the jury that was requested by the defense attorney.
  • The trial Judge failing to grant a directed verdict to the defendant, in cases where there was no evidence to support a particular charge.
  • The trial Judge allowing expert witnesses to testify who were not qualified.
  • The Judge allowing the prosecutor to present harmful evidence about the defendant’s character or background.
  • The trial Judge making improper comments to the jury, or in front of the jury.

Examples of things that a defendant cannot complain about on direct appeal:

  • The defense lawyer’s failure to investigate the case.
  • The defense lawyer’s failure to call witnesses.
  • The defense lawyer’s failure to object to improper evidence, testimony, or comments by the prosecutor.
  • The defense lawyer’s failure to communicate with the client, visit him at the jail, or present the correct defense at trial.

After briefs have been submitted to the Court of Appeals, they will issue a decision. This process takes several months, or even years. The Court of Appeals will either affirm the defendant’s conviction (keep it in place), or reverse the conviction (undo the conviction and sentence). In either case, the losing party will typically want the South Carolina Supreme Court to review the decision: if the State loses, they will ask the Supreme Court to take the case and reverse the Court of Appeals’ decision (putting the defendant’s conviction back in place)… If the defendant loses, they will ask the Supreme Court to take the case and reverse the Court of Appeals’ decision (reversing the defendant’s conviction and sentence).

The South Carolina Supreme Court does not review every case presented to it. People who want them to review a case file what is called a “petition for writ of certiorari.” This document, which the party files in the Supreme Court, essentially asks the Court to take the case. The Supreme Court is authorized to review whatever cases it chooses to. The majority of petitions for certiorari are denied. However, if the Supreme Court feels that the Court of Appeals made the incorrect decision, or if the Supreme Court feels that the case presents an important issue of law, it may grant the petition for certiorari, which means that it agrees to review the case. If the Court grants the petition, both parties file briefs in the Supreme Court, and the parties await the Court’s decision, as they did before the Court of Appeals. If the Supreme Court denies the petition, the defendant’s case is sent back to the trial court for further proceedings. If the defendant’s conviction was reversed, his case will be scheduled for a new trial. If the defendant’s conviction was affirmed, he must commence with PCR proceedings.

Post-Conviction Relief (P.C.R.)

An Application for Post-Conviction Relief, commonly referred to as a “PCR” is a document that is filed in the same jurisdiction where the defendant was convicted. A PCR is a civil suit (filed in the Court of Common Pleas) which alleges that the defendant is being held in prison in violation of his constitutional rights. In other words, the circumstances that caused him to be convicted (and sentenced to prison) included a violation of the defendant’s rights. Most PCR claims will arise from the Sixth Amendment of the United States Constitution. Among the guarantees of the Sixth Amendment is the right to be represented by an attorney at trial. In the landmark case of Strickland v. Washington, the Supreme Court of the United States held that in cases where a defendant’s attorney does something during the course of representation (including during trial) that is objectively unreasonable, for all practical purposes it may be the equivalent of the defendant having no attorney at all, which is a violation of the Sixth Amendment. To win a PCR, the defendant must show not only that his trial attorney made a big mistake, but that this mistake likely contributed to the defendant’s conviction. In other words, you must show more than just a mistake by the trial lawyer – the mistake must be something that, if the attorney had NOT made it, the defendant may not have been convicted at all. It is a very high bar, but it is not insurmountable.

South Carolina PCR Process Infographic

When a defendant files a PCR, the case is scheduled for a hearing before a Judge. At the hearing, the defendant’s new lawyer will typically subpoena the defendant’s prior lawyer, and have him or her testify about the things that they did during the course of the representation. The PCR lawyer also has the opportunity to present new evidence, witnesses who were not called at trial, or any other evidence that the PCR lawyer believes should have been presented during the defendant’s trial.

Examples of things that a defendant can complain about during a PCR:

  • The defense lawyer’s failure to investigate the case.
  • The defense lawyer’s failure to call key witnesses (including alibi witnesses).
  • The defense lawyer’s failure to object to improper evidence, testimony, or comments by the prosecutor.
  • The defense lawyer’s failure to present a valid legal defense at trial.
  • The defense lawyer’s failure to request jury instructions at trial.
  • The defense lawyer’s conflict of interests which should have caused him or her to withdraw from the case.
  • The defense lawyer accidentally presenting evidence or testimony that was harmful to the defendant.
  • The defense lawyer advising the defendant not to testify at trial, when the defendant’s testimony was necessary in order to raise a legal defense.
  • The defense lawyer advising the client to reject a pre-trial plea offer based on the lawyer’s misunderstanding of the law (including incorrect advice regarding the sentencing ranges that the defendant would be subject to if he or she were convicted).
  • The defense lawyer’s failure to inform the defendant of a plea offer that the defendant would have accepted if he or she knew about it.
  • The defense lawyer’s failure to have a competency evaluation, if the defendant was not legally competent to stand trial.
  • The defense lawyer’s failure to request a charge on a lesser offense.
  • In cases where the client pleads guilty prior to trial, the defense lawyer’s failure to make the court aware of the terms of the plea agreement, or failing to object when the prosecutor did not abide by the agreed-upon terms.

After the PCR hearing is held, the Judge will issue a decision. The Judge may render the decision immediately after the hearing, or the Judge may take the matter “under advisement,” which means that the Judge will need additional time to consider the PCR claims, and will render a decision at a later date. Ultimately, the Judge will issue a written order which either denies or grants the defendant’s PCR application. If the Judge grants the PCR application, the State will typically try to appeal that decision to the Supreme Court (asking the higher court to reverse the PCR Judge’s decision and reinstate the defendant’s conviction). Alternatively, in cases where the PCR Judge denies the defendant’s PCR application, the defendant has the right to appeal that decision (asking the higher court to reverse the PCR Judge’s decision, and in turn to reverse the defendant’s conviction). So, in most cases, a PCR hearing will normally be following by an appeal from the PCR Judge’s ruling. This process proceeds in a similar fashion to the phase 1 direct appeal procedures described above, except that the case goes directly to the Supreme Court.

Federal Habeas Corpus

Once the defendant has exhausted all of his appeals and PCR claims in South Carolina’s state courts, he or she has the option to obtain further review of some of their claims in federal court. The federal statute that authorizes this type of procedure is 28 U.S.C. § 2254. All Americans have rights under the federal constitution, and those rights are controlling even in state court proceedings (like a criminal trial in South Carolina’s state courts). In order to ensure that the states do not violate the rights of American citizens, the federal courts are allowed to review the cases of people who were tried, convicted, and sentenced in state court, in order to ensure that the state did not violate the defendant’s constitutional rights.

In order to trigger federal review of a defendant’s state court case, the defendant’s attorney must file an application (similar in substance to the state court PCR application) in federal district court. That application must allege that the defendant’s federal constitutional rights were violated, and must state with precision the nature of such violations. Although the procedures and requirements for getting a state court case reviewed by a federal court are extremely complex, a defendant must meet two basic requirements in order for the federal court to consider reviewing the claims: (1) the defendant must show that they have exhausted all available state court remedies (in other words, they have completed phases 1 and 2 of the above-described procedures), and (2) the defendant must show that the violations in question were presented during the prior state court proceedings (in other words, the state courts had the opportunity to review these issues, but denied that the defendant’s rights were violated). By imposing these basic requirements on defendants, the federal court will ensure that it is only reviewing cases in which the defendant complained about the violation of their constitutional rights during their state court proceedings, and nevertheless the state courts failed to provide relief for those violations. These are the kinds of cases that the federal government is interested in reviewing.

Unlike state PCR proceedings, in which the defendant is always given the opportunity to come to court and present evidence, federal habeas petitioners are not always entitled to a hearing. The federal district court has broad discretion in how it handles habeas petition from state court prisoners. They may review the petition itself and decide that it is without merit, and deny the petition outright without requiring the government to respond. They may ask the attorneys to submit documents or written briefs in support of their arguments, and issue a ruling based on those documents. Or, they may conduct a full hearing into the merits of the case, and allow the defendant’s attorney to appear in person and argue for relief.
In cases where the federal court ultimately agrees that the state courts should have agreed with the defendant’s claims, the federal court has the authority to reverse the defendant’s conviction and order the State of South Carolina to provide the defendant with a new trial. Much like the state court PCR hearings, the losing party will likely want to appeal the district court’s decision. To handle situations like this, the federal government has appellate courts throughout the country, which function similarly to South Carolina’s Court of Appeals. In some cases, a defendant can appeal the denial of their habeas corpus petition, and argue to the federal Circuit Court of Appeals that they are entitled to relief. In very rare cases, a defendant may even be able to take their case all the way to the Supreme Court of the United States. If a defendant is one of the very few people every year who brings their case to the Supreme Court of the United States, that is the highest court in the nation. There are no further appeals if the defendant cannot obtain relief from the Supreme Court.