(a) Procedure. The procedure for post-conviction relief is provided by the Uniform Post-Conviction Procedure Act (Act), S.C. Code Ann. §§ 17-27-10 to -120 (1985). The South Carolina Rules of Civil Procedure shall apply to the extent that they are not inconsistent with the Act.
(b) Time and Form of Application. An application for post-conviction relief cannot be made while an appeal from the conviction or sentence is pending or during the time in which an appeal may be perfected. All applications shall be made on the form set out in the Appendix of Forms. The Office of Court Administration shall insure that an adequate quantity of these forms are available to the circuit court clerks for distribution to persons seeking post-conviction relief.
(c) Independent Action. An application filed under the Act is an independent civil action which should be separately filed and indexed by the clerk of court. The caption in all post-conviction relief actions shall read: Full Name and Prison number (if any) of Applicant v. State of South Carolina.
(d) Appointment of Counsel for Hearing. If, after the State has filed its return, the application presents questions of law or fact which will require a hearing, the court shall promptly appoint counsel to assist the applicant if he is indigent. Counsel shall be given a reasonable time to confer with the applicant. Counsel shall insure that all available grounds for relief are included in the application and shall amend the application if necessary.
(e) Burden of Proof. The applicant has the burden of establishing his entitlement to relief by a preponderance of the evidence.
(f) Filing and Service of Order. The post-conviction relief judge shall submit the signed final order or judgment to the clerk for filing and the clerk of court shall provide notice of entry of judgment and serve a copy of the order or judgment to the parties as provided in Rule 77(d), SCRCP.
(g) Appellate Review; Continuing Representation. A final decision entered under the Act shall be reviewed according to the procedure specified by Rule 243, SCACR. If an applicant represented by counsel desires to appeal, counsel shall serve and file a Notice of Appeal as required by Rule 243, SCACR, and shall continue to represent the applicant on appeal unless automatically relieved under Rule 602, SCACR, or allowed to withdraw under Rule 264, SCACR. If the applicant is indigent, counsel shall assist the applicant in obtaining representation by the Division of Appellate Defense of the Office of Indigent Defense.
This rule is based in part on former Supreme Court Rule 50(1)-(8), and has no counterpart in the Federal Rules.
These amendments consolidate former Rule 71.1(f) and (g) and change the method of appointment of counsel for indigents on appeal to conform to Rule 602, SCACR.
The 2004 Amendment clarifies the process for filing and notification of parties of filed orders in post-conviction relief actions.
Amended by Order dated April 28, 2004.
In 2005, the Office of Appellate Defense became a division of the Office of Indigent Defense. This amendment reflects this organizational change.
References to the South Carolina Appellate Court Rules in Rule 71.1 were amended to reflect changes in the numbering of those rules by Orders of the South Carolina Supreme Court dated January 29, 2009 and April 29, 2009.