THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR. 

THE STATE OF SOUTH CAROLINA
In The Supreme Court

Charles Lenbyrd McCray, Petitioner,

v.

State of South Carolina, Respondent.

ON WRIT OF CERTIORARI

Appeal From Horry County
 Steven H. John, Circuit Court Judge

Memorandum Opinion No. 2012-MO-008
Submitted April 3, 2012 – Filed April 11, 2012

REVERSED

Appellate Defender Robert M. Pachak, of the South Carolina Commission on Indigent Defense, of Columbia, for Petitioner.

Attorney General Alan Wilson, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Assistant Attorney General Christina Catoe, of the Office of the Attorney General, of Columbia, for Respondent.

PER CURIAM:  Petitioner seeks a writ of certiorari from the post-conviction relief (PCR) judge's order dismissing his PCR application as barred by the statute of limitations.  We grant the petition for a writ of certiorari, dispense with further briefing, reverse the order summarily dismissing petitioner's application, and remand for appointment of counsel and a hearing on the State's motion to dismiss.

FACTS

Petitioner pled guilty to criminal sexual conduct with a minor in the second degree on May 15, 2009.  Petitioner notarized his PCR application on April 20, 2010, and the civil action cover sheets were dated April 18, 2010 and April 26, 2010.  Petitioner then mailed his application to the clerk of court, who received it in April 2010.  However, upon receipt, the clerk of court determined the application contained errors.  Accordingly, the clerk of court did not file the application, but mailed it back to petitioner to correct the errors.  Petitioner resubmitted his application on May 26, 2010, after the statute of limitations expired.  The State filed a return and motion to dismiss alleging the application was barred by the statute of limitations.

The PCR judge issued a conditional order of dismissal finding petitioner was convicted on May 15, 2009, and therefore had until May 15, 2010 to file a timely PCR application; however, petitioner's application was not filed until May 26, 2010.  Petitioner filed objections to the conditional order of dismissal, arguing the original application was submitted within the statute of limitations.  Petitioner asserted he should be given the benefit of equitable tolling pursuant to Gary v. State, 347 S.C. 627, 557 S.E.2d 662 (2001), because his application was executed prior to May 15, 2010, but was returned by the clerk for minor corrections and then resubmitted. 

The PCR judge issued a final order of dismissal finding petitioner did not state a sufficient reason to overcome the summary dismissal of his PCR application.  The PCR judge explained Gary does not authorize equitable tolling in PCR cases.  He also noted Gary specifically states that mailing a PCR application does not constitute filing, and that a PCR application must actually be received by the clerk of court within one year of conviction.  

ISSUE

Did the circuit court properly dismiss petitioner's PCR application as barred by the statute of limitations?

ANALYSIS

Petitioner argues the case should be remanded and he should be appointed counsel because he raised an issue of material fact concerning the applicability of the statute of limitations, and because he timely filed his PCR application.

The State concedes the clerk of court received the application in April 2010, but argues because it was not properly completed and the application was not actually filed until the statute of limitations had expired.  The State argues it was petitioner's responsibility to properly fill out the necessary paperwork to ensure his PCR application would be filed within the one-year period.

In Gary, the petitioner mailed the PCR application within the one-year limitation, but mailed the application to the wrong venue.  By the time the application was returned to him, the statute of limitations had expired.  This Court found that because mailing does not constitute filing, mailing a PCR application is not sufficient under S.C. Code Ann. Section 17-27-45(A) (2003).  However, the petitioner also argued he should be afforded equitable tolling of the statute of limitations because he filed the application in the wrong venue.  Although this Court found the equitable tolling issue was not preserved for review, we found the hearing afforded the petitioner on the issue of equitable tolling was inadequate.  Accordingly, this Court held that when the State moves for dismissal under section 17-27-45(A) and the PCR applicant raises an issue of material fact regarding the applicability of the one-year limitation, counsel should be appointed under Rule 71.1(d), SCRCP.  The case was remanded for appointment of counsel.

In the present case, the appendix clearly reflects, and the State concedes, the clerk received petitioner's PCR application in April 2010, but it was returned to petitioner for minor corrections.  Petitioner raised an issue of material fact regarding the applicability of the one-year limitation.  Accordingly, pursuant to Gary, petitioner should have been appointed counsel and a hearing should have been held on the State's motion to dismiss.

CONCLUSION

We find petitioner raised an issue of material fact regarding the applicability of the one-year statute of limitation, and pursuant to Gary should have been appointed counsel and a hearing should have been held on the State's motion to dismiss.  Accordingly, we reverse the order summarily dismissing petitioner's application, and remand for appointment of counsel and a hearing.

REVERSED AND REMANDED.

TOAL, C.J., PLEICONES, BEATTY, KITTREDGE and HEARN, JJ., concur.