Witcher v. State

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 Court of Appeals

Michael L. Witcher, Respondent,

v.

State of South Carolina, Petitioner.

Appellate Case No. 2011-188050

Appeal From Anderson County
J.C. Nicholson, Jr., Circuit Court Judge
J. Cordell Maddox, Post-Conviction Relief Judge

Unpublished Opinion No. 2015-UP-336
Heard April 13, 2015 – Filed July 1, 2015

AFFIRMED

Attorney General Alan McCrory Wilson and Assistant
Attorney General John Walter Whitmire, both of
Columbia, for Petitioner.

Appellate Defender Kathrine Haggard Hudgins, of
Columbia, for Respondent.

PER CURIAM: The State appeals the partial grant of post-conviction relief (PCR)
to Michael Witcher, arguing the PCR court erred in determining it was improper
for a court in Anderson County to revoke Witcher's probation on a Greenville
County conviction. Specifically, the State argues venue was proper in either
Anderson or Greenville County because the evidence in the record demonstrates
the probation violation occurred in Anderson County. See S.C. Code Ann. § 24-
21-460 (2007) (stating that upon arrest for a probation violation, "the court, or the
court within the venue of which the violation occurs, shall cause the defendant to
be brought before it and may revoke the probation or suspension of sentence and
shall proceed to deal with the case as if there had been no probation or suspension
of sentence . . . ."); State v. Carter, 298 S.C. 304, 306, 379 S.E.2d 905, 906 (1989)
(stating section 24-21-460 "permits either the court which imposed the
probationary sentence or the court where the probation violation occurs to revoke
the probation"). While we agree with the State's interpretation of the law, we
affirm because the issue on appeal is not preserved for our review. The State failed
to make any arguments to the PCR court as to why venue was proper and the PCR
court's ruling was in error, the PCR court made no findings of fact as to where the
probation violation occurred, and the State made no post-trial motion seeking
factual findings or conclusions of law regarding whether venue was proper. See
Plyler v. State, 309 S.C. 408, 409, 424 S.E.2d 477, 478 (1992) (finding an issue
that was neither raised at the PCR hearing nor ruled upon by the PCR court is not
preserved); S.C. Dep't of Transp. v. First Carolina Corp. of S.C., 372 S.C. 295,
301, 641 S.E.2d 903, 907 (2007) (noting that under our rules of preservation "it is a
litigant's duty to bring to the [trial] court's attention any perceived error, and the
failure to do so amounts to a waiver of the alleged error"); McCall v. State Farm
Mut. Auto. Ins. Co., 359 S.C. 372, 381, 597 S.E.2d 181, 186 (Ct. App. 2004)
(finding an issue unpreserved where the issue "was clearly addressed to the court
by Respondent, but Appellant advanced no arguments on this issue to the circuit
court"); Burgess v. State, 402 S.C. 92, 95, 738 S.E.2d 264, 265 (Ct. App. 2013)
(stating that "to properly preserve an issue for appellate review, it is incumbent
upon a party in a PCR action to file a Rule 59(e)[, SCRCP,] motion in the event the
PCR court fails to make specific findings of fact and conclusions of law regarding
an issue").

AFFIRMED.

SHORT, LOCKEMY, and McDONALD, JJ., concur.