THE STATE OF SOUTH CAROLINA

In The Supreme Court

Legrand Norris, Petitioner,

v.

State of South Carolina, Respondent.

ON WRIT OF CERTIORARI

Appeal From Lexington County

Julius H. Baggett, Trial Judge

Thomas J. Ervin, Post-Conviction Judge

Opinion No. 24930

Submitted February 18, 1999 - Filed April 5, 1999

AFFIRMED

Daniel T. Stacey, Chief Attorney, of South Carolina

Office of Appellate Defense, of Columbia, for petitioner.

Attorney General Charles M. Condon; Deputy Attorney

General John W. McIntosh; Assistant Deputy Attorney

General Teresa A. Knox, all of Columbia, for

respondent.

TOAL, A.C.J.: In this post-conviction relief ("PCR") case, the PCR court

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dismissed Legrand Norris's ("petitioner") application without prejudice, finding

petitioner mentally incompetent to proceed with the case. We granted the

petition for a writ of certiorari to review the PCR court's decision. We affirm.

FACTUAL/PROCEDURAL BACKGROUND

In November 1990, petitioner was convicted of kidnaping and criminal

sexual conduct third degree. He was sentenced to life imprisonment for

kidnaping and ten years for criminal sexual conduct. Petitioner appealed and

this Court affirmed his conviction and sentence pursuant to Rule 220(b)(1),

SCACR. State v. Norris, Op. No. 92-MO-93 (filed April 24,1992).

In March 1995, petitioner filed an application for PCR. Prior to the PCR

hearing, petitioner's attorney, Reece Williams, requested that petitioner

undergo a psychiatric examination. The PCR court agreed and ordered the

examination. Psychiatrist Dr. Richard L. Frierson examined petitioner and

determined that he suffered from Bipolar Disorder, Mixed type. Dr. Frierson's

evaluation report was admitted at the PCR hearing, and Dr. Frierson testified

that, in his opinion, petitioner was not competent to proceed with the PCR

hearing. Dr. Frierson further testified that petitioner was not taking his

medication, and if he were, there was a "good" likelihood that he might be

restored to competency.

During the hearing, the PCR judge stated that based on Dr. Frierson's

testimony, the case should be continued. The attorney for the State later

requested that the case be dismissed without prejudice instead of being

continued, explaining, "If we just continue it we're going to have to put

[petitioner] on the roster every time." Petitioner's attorney did not object to the

State's request and, in fact, endorsed it, stating: "And so I don't think that we

have any choice but to, as Miss Knox says, perhaps dismiss this without

prejudice until [petitioner] achieves some degree of understanding about what's

going on The PCR court then ordered that the case be dismissed without

prejudice.

This Court granted a petition for a writ of certiorari to consider the

following issue:

Whether the PCR court erred when it dismissed petitioner's case

without prejudice, rather than continuing it on the docket until

such time as petitioner is competent to proceed?

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LAW/ANALYSIS

Petitioner argues that the appropriate action under these circumstances

would be to continue the case, rather than dismiss it without prejudice. He

contends that, otherwise, complicated litigation could arise with respect to the

statute of limitations or tolling due to mental incompetency. We disagree.

An application for post-conviction relief must be filed within one year

after the entry of a judgment of conviction, or within one year after the sending

of the remittitur to the lower court from an appeal or the filing of the final

decision upon an appeal, whichever is later. S.C. Code Ann. § 17-27-45(A)

(Supp. 1998). However, if a defendant was convicted prior to the effective date

of the PCR statute of limitations (July 1, 1995), that defendant had one year

from the effective date to bring his application for post-conviction relief

Peloquin v. State, 321 S.C. 468~ 469 S.E.2d 606 (1996)(holding that all

defendants convicted prior to the effective date of the statute should be allowed

one year after its effective date to file an application).

In the instant case, petitioner's convictions were affirmed by this Court

in April 1992 (prior to the effective date of the PCR statute of limitations).

Thus, the latest date that petitioner could have filed any post-conviction relief

application was July 1, 1996 - one year after the effective date of the PCR

statute of limitations. See Peloquin, supra. Petitioner's initial PCR application

was timely filed in March 1995. Yet, the PCR judge dismissed petitioner's case

without prejudice on November 7, 1996. The PCR judge's written order of

dismissal was issued on January 8, 1997.

In general, when an action is dismissed without prejudice, the statute of

limitations will bar a subsequent suit if the statute runs in the interim. Rink

v. Richland Memorial Hosp., 3 10 S.C. 193, 422 S.E.2d 747 (1992). However, a

defendant is estopped from claiming the defense of statute of limitations when

the defendant consents to plaintiffs motion for voluntary dismissal without

prejudice, and the statute has run prior to the granting of the dismissal. Mende

v. Conway Hosp., Inc., 304 S.C. 313; 404 S.E.2d 33 (1991). Petitioner's initial

PCR application was not dismissed until November 1996 - several months after

the PCR statute of limitations had already run. The State consented to the

dismissal and agreed that petitioner should be allowed to file his application at

a later time once he regained competency. The PCR judge, without objection

from the State, informed petitioner that he could file his application at a later

time. Moreover, the State takes the position on appeal that it would have no

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objection to petitioner filing a future PCR application once he regained

competency. Thus, pursuant to Mende, the State would be estopped in the

future from asserting the defense of statute of limitations whenever petitioner

re-files his PCR application.

We recognize that the PCR Act does not provide for tolling the statute of

limitations due to mental incompetency. However, in light of the fact that the

instant case can be resolved pursuant to Mende, we find it unnecessary to

address the tolling issue. We therefore find there is no unfair prejudice to

petitioner as a result of the PCR court's ruling.

CONCLUSION

Based on the foregoing, we AFFIRM the PCR court's decision to dismiss

petitioner's case without prejudice.

MOORE, WALLER, and BURNETT, JJ., concur. FINNEY, C.J., not

participating.

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