Gamble v. State, 22999
| Decision Date | 10 April 1989 |
| Docket Number | No. 22999,22999 |
| Court | South Carolina Supreme Court |
| Parties | Lloyd GAMBLE, Petitioner, v. STATE of South Carolina, Respondent. |
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.
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heard on its merits, in May of 1986, Gamble contacted his appointed counsel and requested the pending application be withdrawn.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 with the consent of the State. The Order did not state the application was dismissed with prejudice. Therefore, Gamble was entitled to make another petition.
Neither Supreme Court Rule 50(3) nor S.C.Code Ann. § 17-27-90 acts to bar, as successive, Gamble's current petition. South Carolina's Uniform Post-Conviction Procedure Act, § 17-27-90, states:
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