Supreme Court Seal
Supreme Court Seal
South Carolina
Judicial Branch

The Supreme Court of South Carolina

William Rush, Petitioner


State of South Carolina, Respondent


In this post-conviction relief case, petitioner has filed a notice of appeal from an order dated December 8, 2005.� This order states that petitioner moved to withdraw his post-conviction relief action at the start of the proceeding, and that the post-conviction relief judge advised petitioner that any withdrawal would result in a dismissal of the action with prejudice.� The order indicates that petitioner was questioned by the judge and includes a finding that petitioner�s decision to withdraw the action was being made knowingly and voluntarily.� The order grants the motion to withdraw and dismisses the action with prejudice.

A party cannot appeal an order issued with the consent of the party.� Hooper v. Rockwell, 334 S.C. 281, 513 S.E.2d 358 (1999); American Publishing and Engraving Co. v. Gibbes & Co., 59 S.C. 215, 37 S.E. 753 (1901); Smith v. Lowery, 56 S.C. 493, 35 S.E. 129 (1900); Varn v. Varn, 32 S.C. 77, 10 S.E. 829 (1890); Calcutt v. Calcutt, 282 S.C. 565, 320 S.E.2d 55 (Ct. App. 1984).� We see no reason why this rule should not be equally applicable to appellate review in post-conviction relief cases.

In this case, petitioner moved to withdraw despite the fact that he was advised that the withdrawal would result in the dismissal of this matter with prejudice.� Since it was petitioner who sought the withdrawal, he may not appeal the order that resulted when his request was granted.[1]� Accordingly, the notice of appeal is dismissed.



s/ Jean H. Toal                                           C. J.

s/ James E. Moore                                     J.

s/ John H. Waller, Jr.                                   J.

s/ Costa M. Pleicones                                J.

Burnett, J., not participating.

Columbia, South Carolina
March 9, 2006

[1] If there was any error in the findings of fact or conclusions of law in the order, these errors should have been raised by a timely motion under either Rule 52 or 59, SCRCP.