In Fishburne v. State, the SC Supreme Court remanded the case for the lower PCR Court to make findings of fact and conclusions of law for one of Fishburne’s PCR claims that was not addressed in the PCR order, even though Fishburne’s PCR counsel did not file a Rule 59(e) motion to alter or amend the judgment.

Ordinarily, all of a PCR applicant’s issues must be addressed in the lower court’s order denying PCR:

PCR orders must be prepared in compliance with section 17-27-80 of the South Carolina Code (2014) and Rule 52(a) of the South Carolina Rules of Civil Procedure.

The PCR order must contain findings of facts and conclusions of law that are enough for an appellate court to understand what issues were raised, how the lower court ruled on them, and why.

What happens if the Court signs an order that does not address all the issues raised? Or if the Court signs an order with incorrect facts that are not part of the record?

Was Fishburne’s Counsel Ineffective?

In opening statement, Fishburne’s trial counsel told jurors:

• Fishburne was picked up by police at roll call (he already had pending charges);
• He was a “usual suspect;”
• Police were involved with Fishburne before; and
• Fishburne lied to the police.

In closing argument, Fishburne’s counsel told jurors:

• Fishburne “was rounded up” at roll call;
• He “already had some trouble” because he was at roll call;
• Police already knew him;
• Fishburne’s brother was in prison; and
• “The Fishburnes had trouble; it’s a fact.”

Was Fishburne’s counsel ineffective? We don’t know – the PCR court didn’t rule on that PCR claim, and there were no findings of fact or conclusions of law in the PCR order.

On remand, the PCR court is instructed to issue findings of fact and conclusions of law on that issue. It is possible the PCR court will deny PCR based on the trial attorney’s testimony at the hearing, where he explained that he had a valid trial strategy for informing the jurors that his client was a liar, who was facing charges already, who was known to the police, and whose brother was also in prison…

Alibi Witnesses

Fishburne’s counsel also failed to call Fishburne’s alibi witnesses at trial, who would have testified that he was at the club but that he left before the shooting happened (the very thing the police and Fishburne’s attorney said Fishburne lied about).

But, even on remand, the PCR court cannot grant PCR based on his attorney’s failure to call alibi witnesses because Fishburne’s PCR counsel also failed to call the alibi witnesses at his PCR hearing.

What is a Rule 59(e) Motion?

SC Code Section 17-27-80 requires a PCR court to include findings of fact and conclusions of law in their order for every issue that was presented at the PCR hearing:

The application shall be heard in, and before any judge of, a court of competent jurisdiction in the county in which the conviction took place. A record of the proceedings shall be made and preserved. All rules and statutes applicable in civil proceedings are available to the parties. The court may receive proof by affidavits, depositions, oral testimony or other evidence and may order the applicant brought before it for hearing. If the court finds in favor of the applicant, it shall enter an appropriate order with respect to the conviction or sentence in the former proceedings, and any supplementary orders as to rearraignment, retrial, custody, bail, discharge, correction of sentence or other matters that may be necessary and proper. The court shall make specific findings of fact, and state expressly its conclusions of law, relating to each issue presented. This order is a final judgment.

If the PCR court fails to address one of the petitioner’s issues in an Order denying PCR, fails to include findings of fact or conclusions of law, or just gets the facts wrong, the petitioner is bound by the PCR court’s order unless they file a Rule 59(e) motion to alter or amend the judgment.

If there is no final ruling, the appellate courts have nothing to affirm or overturn…

Rule 59(e) of the SC Rules of Civil Procedure (PCR claims are in civil court) permits a litigant to file a motion to alter or amend a court’s ruling within 10 days of receiving the Order:

(e) Motion to Alter or Amend a Judgment. A motion to alter or amend the judgment shall be served not later than 10 days after receipt of written notice of the entry of the order.

If the Order leaves out an issue, file a Rule 59(e) motion pointing it out and asking the Court to correct it. If the Order states incorrect facts, file a Rule 59(e) motion pointing it out and asking the Court to correct it.

If you file the motion and it is denied, you have still done what is required to preserve the issue for appellate review.

Who Drafts the Orders for the PCR Court?

Judges should know the rule, right? Why do judges leave out issues or cite to incorrect facts that are slanted towards the prosecution?

In most cases, the judges do not draft the orders. If the PCR judge intends to deny PCR, they are likely to email the Attorney General and ask the state’s attorney to prepare the order for them. The court receives it, signs it, and serves it on the parties. Unfortunately, judges do not always take the time to carefully read the Order to ensure that it is truthful and includes all issues…

The state’s attorney will usually email the proposed order to the judge, copying the petitioner’s attorney. At this point, your attorney can “informally” point out the errors or absence of issues in the Order. If the judge signs it anyway, your attorney can then file the Rule 59(e) motion, preserving your issues for the appellate court.

Criminal Defense and PCR Lawyer in Charleston, SC

If you’ve been charged with a crime in the Charleston, SC area, call us before your trial. SC criminal defense lawyer Grant B. Smaldone focuses his law practice on criminal defense cases including criminal trials in the Charleston area.

If you have been convicted, however, and you believe you may have grounds for PCR or a criminal appeal, call now at (843) 808-2100 or send an online message to talk to a Charleston, SC criminal defense and PCR attorney today.