The Supreme Court of South Carolina

RE:  Amendments to the South Carolina Appellate Court Rules

ORDER

By order dated January 29, 2009 (copy attached), this Court adopted amendments to the South Carolina Appellate Court Rules to reflect the passage of Act No. 413 of 2008, and these amendments were submitted to the General Assembly pursuant to Article V, § 4A, of the South Carolina Constitution.  Since ninety days have passed since submission without rejection by the General Assembly, these amendments are effective immediately.  

IT IS SO ORDERED.

Columbia, South Carolina
April 29, 2009

The Supreme Court of South Carolina

RE:  Amendments to the South Carolina Appellate Court Rules

ORDER

On October 21, 2008, the General Assembly overrode the Governor’s veto of Senate Bill 429 relating to DNA evidence, and the Senate Bill became Act No. 413 of 2008.   Based on this legislation, amendments to the South Carolina Appellate Court Rules (SCACR) are necessary.

Accordingly, pursuant to Article V, §4 of the South Carolina Constitution, the SCACR is amended as shown in the attachment to this order.  These amendments shall be submitted to the General Assembly as provided by Article V, § 4A of the South Carolina Constitution.

IT IS SO ORDERED.

Columbia, South Carolina
January 29, 2009

Amendments to the South Carolina Appellate Court Rules

(1) Rules 224 through 230, SCACR, of the current rules are renumbered as Rules 240 through 246, SCACR.  All references to these renumbered rules shall be amended in all other court rules and forms.

(2) Rules 231 through 241, SCACR, of the current rules are renumbered as Rules 260 through 270, SCACR.  All references to these renumbered rules shall be amended in all other court rules and forms.

(3) The following is added:

RULE 247
CERTIORARI TO REVIEW DNA TESTING DECISIONS

(a) Review by Writ of Certiorari.  A final order of the circuit or family court denying or granting DNA testing under the Access to Justice Post-Conviction DNA Testing Act (S.C. Code Ann. §§17-28-10 to -120) shall be reviewed upon petition of either party for a writ of certiorari according to the procedure set forth in this rule.

(b) Notice of Appeal and Ordering Transcript.  The notice of appeal shall be served on all respondents within ten (10) days after receipt of written notice of entry of the final order.  If review will involve testing relating to a case in which a sentence of death was imposed or will involve a challenge on state or federal grounds to the constitutionality of a state law or county or municipal ordinance, the notice of appeal shall be filed with the Supreme Court.  In all other cases, the notice of appeal shall be filed with the Court of Appeals.  Under Rule 204, SCACR, the Supreme Court may certify a case for review by the Supreme Court.  Further, in the same manner and under the same time limitations as provided for appeals from the Court of General Sessions or the Family Court in juvenile delinquency cases in Rule 207, the petitioner shall obtain from the court reporter a transcript of the proceedings in the lower court.

(c) Service and Filing of Petition and Appendix.  Within thirty (30) days of receipt of the transcript, petitioner shall serve a copy of the Appendix and petition for a writ of certiorari on opposing counsel and shall file with the Clerk of the appellate court in which the matter is pending an original plus six (6) copies of the petition, two (2) copies of the Appendix, and proof of service showing the Appendix and petition have been served.  As provided by Rule 267(d), one copy of the Appendix filed with the appellate court shall be filed unbound.

(d) Content of Petition.  The petition shall contain:

(1) The questions presented for review, expressed in the terms and circumstances of the case but without unnecessary detail.
         
(2) A concise statement of the case containing the facts material to the consideration of the questions presented.

(3) A direct and concise argument in support of the petition.  The argument on each question shall include citation of authority and specific reference to pertinent portions of the lower court record.  The total length of a petition shall not exceed twenty-five (25) pages.

(e) Content of Appendix.  The Appendix shall contain:

(1) The entire lower court record.

(2) A copy of the final order entered in the proceeding.

(3) An index setting forth the principal matters contained in the appendix.  This index shall be in the same form required for a Record on Appeal under Rule 210(e).

(f) Return of Respondent.  Within thirty (30) days after service of the petition and Appendix, respondent shall serve a copy of a return on opposing counsel, and shall file with the Clerk of the appellate court in which the matter is pending an original and six (6) copies of the return and proof of service showing that the return has been served.  The return may rephrase the questions, offer additional sustaining grounds, and present a concise counter-statement.  The total length of a return shall not exceed twenty-five (25) pages.

(g) Reply.  The petitioner shall have ten (10) days from the date of service of the return to file with the Clerk of the appellate court in which the matter is pending an original and six (6) copies of a reply and proof of service showing that the reply has been served.  The total length of the reply shall not exceed fifteen (15) pages.

(h) Procedure Upon Grant of Certiorari.  Upon the concurrence of any two justices of the Supreme Court or one judge of a three-judge panel of the Court of Appeals, the petition may be granted on any question presented.  The petition will be considered by the appellate court without oral argument.  If the petition is granted, the Clerk shall notify each party or his attorney, specifying the question or questions to be considered, and the parties shall prepare briefs addressing the question(s).  Petitioner shall have thirty (30) days from the date the petition is granted to serve a copy of a brief on all parties to the appeal, and file with the Clerk of the appellate court fifteen (15) copies of the brief, along with proof of service.  At the time the brief is filed, petitioner shall also file thirteen (13) additional copies of the Appendix.  Within thirty (30) days after service of petitioner’s brief, respondent shall serve a copy of a brief on all parties to the appeal, and file with the Clerk of the appellate court fifteen (15) copies of the brief, along with proof of service.  Petitioner may file a reply brief.  If a reply brief is prepared, petitioner shall, within ten (10) days after service of respondent’s brief, serve a copy of the reply brief on all parties to the appeal and file with the Clerk of the appellate court fifteen (15) copies of the reply brief, along with proof of service.  The briefs shall, to the extent possible, comply with the requirements of Rule 208(b).  Oral argument shall not be permitted unless ordered by the appellate court.

(i) Review of Decisions of the Court of Appeals.  A final decision of the Court of Appeals under this rule may be reviewed as provided by Rule 242, SCACR.

(4) Rules 224 through 239, SCACR, and Rules 248 through 259, SCACR shall be marked as reserved for future use.

(5) Rule 606, SCACR, is amended to read:

RULE 606
RETENTION AND DISPOSITION OF EXHIBITS IN THE
CIRCUIT AND FAMILY COURTS

(a) Duty of Clerk. Unless otherwise directed by the court or this rule, the clerk of court for the county shall retain possession of all exhibits admitted into evidence or marked for identification during a hearing or trial before the circuit or family court.

(b) Release of Exhibits.  The clerk may temporarily release exhibits to the court reporter during the hearing or trial or when necessary to prepare the transcript, to a person designated by order of an appellate court when exhibits are needed for an appellate proceeding, or to any other person as may be ordered by the court.

(c) Retention Period by Clerk.

(1) Criminal Cases (Including Juvenile Delinquency Cases).

(A) Capital Cases.  In any criminal case in which a sentence of death has been imposed, the exhibits shall be retained by the clerk and shall not be disposed of except upon order of the Supreme Court or upon the death of the defendant.  In the event of the death of the defendant, the circuit court shall direct a disposition of the exhibits.

 (B) Non-Capital Cases.   The clerk of court shall retain the exhibits in non-capital cases (including juvenile delinquency cases) for at least eighteen (18) months after sentence is imposed or, if an appeal is taken, for eighteen (18) months after the remittitur is sent by the appellate court.  For the purpose of this rule, the term “sentence” shall include commitment or other care and treatment imposed at the dispositional hearing in a juvenile delinquency case.  After the expiration of this retention period, the clerk shall dispose of the exhibits as provided by (d)(1)(B) and (d)(1)(C) below.  In the event the defendant should die during this retention period, the exhibits may be immediately disposed of as provided by (d)(1)(C) below even for offenses covered by the Preservation of Evidence Act (S.C. Code Ann. §§ 17-28-300 to -360).

(2) Civil Cases.

(A) Collateral Challenges Regarding Capital Cases. In any post-conviction relief case or other civil collateral proceeding challenging a criminal case involving a sentence of death, the exhibits shall be retained by the clerk and shall not be disposed of except upon order of the Supreme Court or upon the death of the criminal defendant.  In the event of the death of the defendant, the circuit court shall direct a disposition of the exhibits. 

(B) All Other Civil Cases.  The clerk shall retain the exhibits in all other civil cases for sixty (60) days after the entry of the final judgment in the matter or, if an appeal is taken, sixty (60) days after the remittitur is sent by the appellate court.  After the expiration of this retention period, the clerk shall dispose of the exhibits as provided by (d)(2)(B) below.

(d) Disposition of Exhibits by Clerk.

          (1) Criminal Cases (Including Juvenile Delinquency Cases).

(A) Capital Cases.   As indicated by (c)(1)(A) above, the clerk shall not dispose of exhibits in a capital case except upon order of the Supreme Court or upon the death of the defendant. In the event of the death of the defendant, the circuit court shall direct a disposition of the exhibits.

(B) Disposition of Exhibits in Cases Involving Crimes Listed in the Preservation of Evidence Act.  In any non-capital case involving one of the offenses listed in the Preservation of Evidence Act or accessory before the fact to one of those offenses, a custodian designated by the governing body of the county or, if such designation has not been made, the sheriff of the county, shall be responsible for obtaining the exhibits from the clerk after the expiration of the time period specified in (c)(1)(B) above.  Unless otherwise ordered by the court under S.C. Code Ann. § 17-28-340, the designated custodian, or the sheriff if no other custodian has been designated, shall be responsible for retaining the exhibits for the periods specified by the Preservation of Evidence Act.  After notice from the clerk, the designated custodian, or the sheriff if no other custodian has been designated, shall have thirty (30) days to take custody of the exhibits and provide the clerk with a receipt for the exhibits.  Failure to do so may be treated as contempt of the circuit or family court.

(C) All Other Criminal Cases.   Unless the court has ordered some other disposition of the exhibit, the party introducing an exhibit shall immediately reclaim the exhibit from the clerk after the expiration of the retention period specified in (c)(1)(B) above.  The party shall sign a receipt for the exhibit.  For exhibits that are not reclaimed, the clerk may dispose of an exhibit:

(i) Forty-five (45) days after the mailing of a notice to the party introducing the exhibit advising the party that the exhibit will be destroyed or disposed of if not reclaimed within thirty (30) days. This notice shall not be sent prior to the expiration of the retention period specified in (c)(1)(B) above.  The notice shall be sent to the party’s last counsel of record as shown by the case file or, if the party has no counsel of record, to the party at the party’s last known address as shown by the case file; or

(ii) Regardless whether notice is given under (i) above, twenty-four (24) months after the sentence was imposed or, if an appeal was taken, twenty-four (24) months after the remittitur was issued.

(2) Civil Cases.

(A) Collateral Challenges Regarding Capital Cases. As indicated by (c)(2)(A) above, the clerk shall not dispose of exhibits in a post-conviction relief case or other civil collateral proceeding challenging a criminal case involving a sentence of death except upon order of the Supreme Court or upon the death of the criminal defendant.  In the event of the death of the defendant, the circuit court shall direct a disposition of the exhibits.

(B) All Other Civil Cases.   Unless the court has ordered some other disposition of the exhibit, the party introducing an exhibit shall immediately reclaim the exhibit from the clerk of court after the expiration of the retention period specified in (c)(2)(B).  The party shall sign a receipt for the exhibit. For exhibits which are not reclaimed, the clerk may dispose of the exhibit:

(i)      Forty-five (45) days after the mailing of a notice to the party introducing the exhibit advising the party that the exhibit will be destroyed or disposed of if not reclaimed within thirty (30) days. This notice shall not be sent prior to the expiration of the retention period specified in (c)(2)(B) above.  The notice shall be sent to the party’s last counsel of record as shown by the case file or, if the party has no counsel of record, to the party at the party’s last known address as shown by the case file; or

(ii)     Regardless whether notice is given under (i) above, six (6) months after the entry of final judgment in the matter or, if an appeal was taken, six months after the remittitur was issued.

(e)     Effect of the Failure to Reclaim Exhibits; Liability of Clerk.  The failure of a party to reclaim an exhibit within thirty (30) days after the time the party is authorized to do so under (d)(1)(C) or (d)(2)(B) shall be construed as the party’s consent to destroy or otherwise dispose of the exhibit, and no cause of action shall lie against the clerk for the destruction or other disposition of the exhibit.  Except as otherwise provided by law, this rule or order of the court, an exhibit which is not reclaimed under (d)(1)(C) or (d)(2)(B) shall become the property of the county and the clerk shall deliver the exhibit to the county; provided, however, if the exhibit has no value or de minimis value, the clerk may destroy the exhibit.

(f)     Record of Disposition.  A record of exhibits which have been disposed of by the clerk under (d) above shall be maintained.  At a minimum, the case file should contain a description, copy or photograph of the exhibit; the date any notice under (d)(1)(C)(i) or (d)(2)(B)(i) was mailed; the date of the disposition of the exhibit; the nature of the disposition including the name of the party, person or agency to whom it was returned if applicable; and a copy of the receipt for the exhibit if the exhibit was returned.

(g)     Illegal Items.  This rule shall not authorize the return of an exhibit to any person when the exhibit is a weapon, controlled substance, poison, explosive or any other kind of property which the person may not lawfully possess.  In such cases, the exhibit shall be disposed of in the manner provided by law or in a manner ordered by the court.

(h)     Authority of Court.   The court may, on motion by a party or its own motion, direct the release of an exhibit at any time, and may allow the substitution of a copy, photograph or description in place of the exhibit. If such substitution is allowed, the copy, photograph or description shall be admissible in any subsequent proceedings to the same extent that the exhibit would have been admissible.  The court may, on motion by a party or its own motion, direct the retention of an exhibit beyond the period specified by this rule upon a showing of good cause.  The court may, on motion by a party or someone having an interest in the exhibit, direct that an exhibit be returned to someone other than the party who introduced the exhibit.  In cases involving one of the offenses listed in the Preservation of Evidence Act or accessory before the fact to one of those offenses, no substitution, return or other disposition of the exhibit shall be made unless the requirements of S.C. Code Ann. § 17-28-340 have been satisfied.