Hitter v. McLeod, No. 21224

CourtUnited States State Supreme Court of South Carolina
Writing for the CourtGREGORY; LEWIS
Citation266 S.E.2d 418,274 S.C. 616
PartiesMichael HITTER, on behalf of himself and all others similarly situated, Respondent, v. Daniel R. McLEOD, Attorney General of the State of South Carolina, Individually, in his official capacity, and on behalf of all others who prosecute criminal actions for the State of South Carolina, Appellant.
Decision Date12 May 1980
Docket NumberNo. 21224

Page 418

266 S.E.2d 418
274 S.C. 616
Michael HITTER, on behalf of himself and all others
similarly situated, Respondent,
v.
Daniel R. McLEOD, Attorney General of the State of South
Carolina, Individually, in his official capacity, and on
behalf of all others who prosecute criminal actions for the
State of South Carolina, Appellant.
No. 21224.
Supreme Court of South Carolina.
May 12, 1980.

Page 419

[274 S.C. 617] Atty. Gen. Daniel R. McLeod, Asst. Atty. Gen. Brian P. Gibbes, Staff Atty. Grady L. Patterson, III, and Sol. James C. Anders, Columbia, for appellant.

Roy T. Stuckey, Vance L. Cowden and John L. Davidson, Columbia, for respondent.

GREGORY, Justice:

Respondent Michael Hitter brought this class action seeking a declaratory judgment that the 1977 Death Penalty Act 1 cannot be applied to persons charged with a murder committed prior to the effective date of the Act. 2 Attorney General Daniel R. McLeod's demurrer to the complaint was overruled 3 by the circuit court and he appeals. We dismiss the action.

Hitter was found guilty of murder and sentenced to life imprisonment pursuant to Section 16-52 (1962 Code) on March 7, 1974. The offense occurred and Hitter was tried, convicted and sentenced during the interim period between Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), which invalidated the application of [274 S.C. 618] the death penalty under procedures such as our § 16-52; and July 2, 1974, the effective date of the 1974 Death Penalty Act. During this period there was no operative death penalty statute in this state.

Hitter's state post-conviction remedies have been exhausted. By this action he seeks our advice before filing a petition in federal court for habeas corpus relief on whether our present death penalty act may be applied to the new trial he would receive if he is successful in the collateral attack of his conviction in federal court.

It is our view the allegations of the complaint fail to show the existence of a justiciable controversy and therefore do not state facts sufficient to constitute a cause of action. See Preston H. Haskell Company v. Morgan, S.C., 262 S.E.2d 737 (1980); Guimarin & Doan v. Georgetown Textile & Mfg. Co., 249 S.C. 561, 155 S.E.2d 618 (1967). Accordingly, the lower court erred in overruling the demurrer on this ground.

While respondent Hitter's dilemma is appreciable, see Fay v. Noia, 372 U.S. 391, 83

Page 420

S.Ct. 822, 9 L.Ed.2d 837 (1963), it does not ipso facto...

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5 practice notes
  • Horry County v. Parbel, No. 4388.
    • United States
    • Court of Appeals of South Carolina
    • 12 Mayo 2008
    ...jurisdiction to issue advisory opinions." Booth v. Grissom, 265 S.C. 190, 192, 217 S.E.2d 223, 224 (1975); see also Hitter v. McLeod, 274 S.C. 616, 618, 266 S.E.2d 418, 420 (1980) ("[I]t does not ipso facto confer jurisdiction on this Court, or the court below, to render an adviso......
  • Waters v. South Carolina Land Resources Conservation Com'n, No. 24377
    • United States
    • United States State Supreme Court of South Carolina
    • 14 Noviembre 1995
    ...Pee Dee Elec. Coop., Inc. v. Carolina Power & Light Co., 279 S.C. 64, 66, 301 S.E.2d 761, 762 (1983). See also Hitter v. McLeod, 274 S.C. 616, 266 S.E.2d 418 (1980). In determining a ripeness issue under the "case or controversy" requirement of Article III of the United States......
  • Jivers v. State, No. 23411
    • United States
    • United States State Supreme Court of South Carolina
    • 10 Junio 1991
    ...knowingly and intelligently entered pursuant to a favorable plea bargain, waives a plea of former jeopardy." 274 S.C. at 615, 266 S.E.2d at 418. However, Kelly is clearly distinguishable from the case at hand because in Kelly, the trial judge found that counsel's representation was com......
  • Crews v. W.R. Crews Inc. & Architectural Railings And Grilles, No. 4735.
    • United States
    • Court of Appeals of South Carolina
    • 1 Septiembre 2010
    ...S.E.2d 685, 694 (2006) ( “[A]n issue that is contingent, hypothetical, or abstract is not ripe for judicial review.”); Hitter v. McLeod, 274 S.C. 616, 619, 266 S.E.2d 418, 420 (1980) (declining to rule on an issue that was not ripe for adjudication and noting it “presents [the court] with n......
  • Request a trial to view additional results
5 cases
  • Horry County v. Parbel, No. 4388.
    • United States
    • Court of Appeals of South Carolina
    • 12 Mayo 2008
    ...jurisdiction to issue advisory opinions." Booth v. Grissom, 265 S.C. 190, 192, 217 S.E.2d 223, 224 (1975); see also Hitter v. McLeod, 274 S.C. 616, 618, 266 S.E.2d 418, 420 (1980) ("[I]t does not ipso facto confer jurisdiction on this Court, or the court below, to render an adviso......
  • Waters v. South Carolina Land Resources Conservation Com'n, No. 24377
    • United States
    • United States State Supreme Court of South Carolina
    • 14 Noviembre 1995
    ...Pee Dee Elec. Coop., Inc. v. Carolina Power & Light Co., 279 S.C. 64, 66, 301 S.E.2d 761, 762 (1983). See also Hitter v. McLeod, 274 S.C. 616, 266 S.E.2d 418 (1980). In determining a ripeness issue under the "case or controversy" requirement of Article III of the United States......
  • Jivers v. State, No. 23411
    • United States
    • United States State Supreme Court of South Carolina
    • 10 Junio 1991
    ...knowingly and intelligently entered pursuant to a favorable plea bargain, waives a plea of former jeopardy." 274 S.C. at 615, 266 S.E.2d at 418. However, Kelly is clearly distinguishable from the case at hand because in Kelly, the trial judge found that counsel's representation was com......
  • Crews v. W.R. Crews Inc. & Architectural Railings And Grilles, No. 4735.
    • United States
    • Court of Appeals of South Carolina
    • 1 Septiembre 2010
    ...S.E.2d 685, 694 (2006) ( “[A]n issue that is contingent, hypothetical, or abstract is not ripe for judicial review.”); Hitter v. McLeod, 274 S.C. 616, 619, 266 S.E.2d 418, 420 (1980) (declining to rule on an issue that was not ripe for adjudication and noting it “presents [the court] with n......
  • Request a trial to view additional results

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