Gamble v. State, No. 22999

CourtUnited States State Supreme Court of South Carolina
Writing for the CourtTOAL; GREGORY
Citation298 S.C. 176,379 S.E.2d 118
PartiesLloyd GAMBLE, Petitioner, v. STATE of South Carolina, Respondent.
Decision Date10 April 1989
Docket NumberNo. 22999

Page 118

379 S.E.2d 118
298 S.C. 176
Lloyd GAMBLE, Petitioner,
v.
STATE of South Carolina, Respondent.
No. 22999.
Supreme Court of South Carolina.
Submitted Feb. 21, 1989.
Decided April 10, 1989.

Chief Deputy Atty. Elizabeth C. Fullwood, of S.C. Office of Appellate Defense, Columbia, for petitioner.

Atty. Gen. T. Travis Medlock, Chief Deputy Atty. Gen. Donald J. Zelenka and Staff Atty. Delbert H. Singleton, Jr., Columbia, for respondent.

[298 S.C. 177] TOAL, Justice:

The lower court dismissed this post-conviction relief application, holding it was a successive application and thus barred by Supreme Court Rule 50(3) and S.C.Code Ann. § 17-27-90. We reverse.

In June 1985, Lloyd Gamble was convicted for conspiracy, trafficking in cocaine, possession of cocaine and possession of cocaine with intent to distribute. Gamble made a direct appeal to this Court which was dismissed December 17, 1985 for failure to perfect it. Gamble filed an application for post-conviction relief December 9, 1985. Before this application was heard on its merits, in May of 1986, Gamble contacted his appointed counsel and requested the pending application be withdrawn. Counsel requested the application's withdrawal, and the Circuit Court ordered the dismissal in May 1986. This Order recited that the State agreed to the dismissal but did not state that the application was to be dismissed with prejudice.

Gamble filed the present post-conviction relief application March 12, 1987. The grounds which Gamble asserts for relief under the present application were available to him when he made his first application. The Circuit Court dismissed the present application by Order dated November 4, 1987, following an evidentiary hearing, holding the application was barred as successive under Supreme Court Rule 50(3) and S.C.Code Ann. § 17-27-90.

Petitions for post-conviction relief are civil actions. Supreme Court Rule 50(7). The South Carolina Rules of Civil Procedure are applicable to all civil actions. Rule 1, SCRCP. Applicable civil practice rules are specifically incorporated by statute into post-conviction practice. S.C.Code Ann. § 17-27-80.

The voluntary dismissal of an action by a plaintiff with the consent of the opposing party is without prejudice unless otherwise stated in the notice of dismissal or stipulation. Rule 41(a)(1), SCRCP.

The lower court dismissed Gamble's first petition prior to adjudication on the merits

Page 119

with the consent of the State. The...

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14 practice notes
  • Nelson v. QHG OF SOUTH CAROLINA INC., No. 3626.
    • United States
    • Court of Appeals of South Carolina
    • April 14, 2003
    ...the voluntary dismissal of an action by a plaintiff with the consent of the opposing party is without prejudice. Gamble v. State, 298 S.C. 176, 379 S.E.2d 118 (1989). Generally, a plaintiff is entitled to a voluntary non-suit without prejudice as a matter of right unless the defendant shows......
  • Gilbert v. Moore, Nos. 96-12
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • January 22, 1998
    ...consideration in PCR proceedings of, inter alia, claims that have previously been raised and decided on the merits. See Gamble v. State, 298 S.C. 176, 379 S.E.2d 118, 119 (1989); Foxworth v. State, 275 S.C. 615, 274 S.E.2d 415, 416 13 Even if we were to reach the merits, however, this claim......
  • Matthews v. Evatt, No. 96-5
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • January 28, 1997
    ...PCR application, thereby preventing an applicant from receiving more than "one bite at the apple as it were." Gamble v. State, 298 S.C. 176, 379 S.E.2d 118, 119 (1989). In Case, Carter, and Washington, the applicant never received a full bite at the apple because the applicant was......
  • Pettinato v. Eagleton, C.A. No. 2:05-1226 PMD RSC.
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • September 21, 2006
    ...and [had] been allowed to seek review of the ruling against him." 305 S.C. at 452, 409 S.E.2d at 395; see also Gamble v. State, 298 S.C. 176, 178, 379 S.E.2d 118, 119 (1989) (holding that the PCR rules "contemplate an adjudication on the merits of the original petition, one bite o......
  • Request a trial to view additional results
14 cases
  • Nelson v. QHG OF SOUTH CAROLINA INC., No. 3626.
    • United States
    • Court of Appeals of South Carolina
    • April 14, 2003
    ...the voluntary dismissal of an action by a plaintiff with the consent of the opposing party is without prejudice. Gamble v. State, 298 S.C. 176, 379 S.E.2d 118 (1989). Generally, a plaintiff is entitled to a voluntary non-suit without prejudice as a matter of right unless the defendant shows......
  • Gilbert v. Moore, Nos. 96-12
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • January 22, 1998
    ...consideration in PCR proceedings of, inter alia, claims that have previously been raised and decided on the merits. See Gamble v. State, 298 S.C. 176, 379 S.E.2d 118, 119 (1989); Foxworth v. State, 275 S.C. 615, 274 S.E.2d 415, 416 13 Even if we were to reach the merits, however, this claim......
  • Matthews v. Evatt, No. 96-5
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • January 28, 1997
    ...PCR application, thereby preventing an applicant from receiving more than "one bite at the apple as it were." Gamble v. State, 298 S.C. 176, 379 S.E.2d 118, 119 (1989). In Case, Carter, and Washington, the applicant never received a full bite at the apple because the applicant was......
  • Pettinato v. Eagleton, C.A. No. 2:05-1226 PMD RSC.
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • September 21, 2006
    ...and [had] been allowed to seek review of the ruling against him." 305 S.C. at 452, 409 S.E.2d at 395; see also Gamble v. State, 298 S.C. 176, 178, 379 S.E.2d 118, 119 (1989) (holding that the PCR rules "contemplate an adjudication on the merits of the original petition, one bite o......
  • Request a trial to view additional results

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