Henry v. State, 21259

Decision Date02 July 1980
Docket NumberNo. 21259,21259
CourtSouth Carolina Supreme Court
PartiesNoah Lee HENRY, Appellant, v. STATE of South Carolina, Respondent.

Chief Atty. John L. Sweeny and Staff Atty. Tara D. Shurling, of S. C. App. Defense Commission, Columbia, for appellant.

Atty. Gen. Daniel R. McLeod and Asst. Attys. Gen. William K. Moore and William P. Simpson, Columbia, for respondent.

PER CURIAM:

Appellant was convicted of committing a lewd act in violation of § 16-413.1, S.C.Code of Laws (1962), Cum.Supp.1975, 1 and sentenced to six (6) years imprisonment, suspended upon service of four (4) years and five (5) years probation. This appeal is from an order denying appellant's application for post-conviction relief. We affirm.

In the lower court, appellant's attorney moved for the hearing judge to disqualify himself on the basis that he had also presided over appellant's trial.

Other state courts have indicated there is no per se rule prohibiting a judge from presiding over a defendant's trial and subsequent post-conviction relief hearing. See People v. Coleman, 32 Ill.App.3d 949, 337 N.E.2d 269 (1975) (judge presided at bench trial and post-conviction proceeding) ; see also Arledge v. State, 57 Ala.App. 553, 329 So.2d 613 (1976); Commonwealth v. Leate, 367 Mass. 689, 327 N.E.2d 866 (1975); Meyers v. State, 252 Ark. 367, 479 S.W.2d 238 (1972) (judge who accepted guilty plea also presided at post-conviction proceeding).

Similarly, the federal courts have held that the sentencing judge may also entertain and determine motions concerning post-conviction relief filed under 28 U.S.C.A. Section 2255. E.g., U. S. v. Smith, 337 F.2d 49 (4th Cir. 1964), cert. den. 381 U.S. 916, 85 S.Ct. 1542, 14 L.Ed.2d 436 (1965); Dukes v. U. S., 407 F.2d 863 (9th Cir. 1969), cert. den. 396 U.S. 897, 90 S.Ct. 193, 24 L.Ed.2d 174 (1969); Lucero v. U. S., 425 F.2d 172 (10th Cir. 1970).

We hold that absent circumstances requiring a judge's disqualification under Canon 3(C)(1) of the Code of Judicial Conduct, Supreme Court Rule 33, a defendant is not prejudiced by the same judge presiding over both his trial and post-conviction relief hearing. As the record before us indicates nothing which would have justified the judge disqualifying himself, appellant's contention is without merit.

The remaining question concerns appellant's charge that he was denied effective assistance of counsel. The trial judge held that appellant received effective assistance of counsel at trial and...

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3 cases
  • State v. Martin
    • United States
    • South Carolina Supreme Court
    • July 2, 1980
  • State v. Sawyer, 22174
    • United States
    • South Carolina Supreme Court
    • October 29, 1984
  • Floyd v. State
    • United States
    • South Carolina Supreme Court
    • January 21, 1991
    ...relief. We requested the parties to brief the issue whether this Court should modify or overrule its holding in Henry v. State, 275 S.C. 148, 268 S.E.2d 41 (1980), that it was permissible for a judge to preside at both a trial and subsequent post-conviction proceeding involving the same cri......

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