State v. Cummins

THIS OPINION HAS NO PRECEDENTIAL VALUE

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

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

The State, Appellant/Respondent,

v.

Charles L. Cummins, III, Respondent/Appellant.

Appeal From Spartanburg County

Roger L. Couch, Circuit Court Judge

Unpublished Opinion No. 2008-UP-174

Submitted March 4, 2008 – Filed March 13,
2008

DISMISSED, DENIED, REMANDED

Charles H. Sheppard and Rachel D. Erwin, of Blythewood;

for Appellant-Respondent.

P. Christopher Smith, Jr. and Desa Ballard, of W. Columbia;

Robert T. Usry and Robert M. Holland, of Spartanburg;

for Respondent-Appellant.

PER CURIAM: In
this cross-appeal, the defendant, Charles L. Cummins, III, appeals a
magistrate’s pre-trial ruling that the videotape from the incident site of an
alleged DUI should not be suppressed from evidence at trial.  The State also
appeals claiming the magistrate erred in ruling the videotape of a breathalyzer
test and the breathalyzer results should be suppressed from evidence at trial
due to an incomplete Miranda warning.   

We dismiss Cummins’ appeal regarding the
failure to suppress the videotape from the incident site of the alleged DUI
pursuant to Rule 220(b)(2), SCACR, and the following authorities: see State v. Miller,
289 S.C. 426, 346 S.E.2d 705 (1986) (stating a criminal defendant may not
appeal until sentence is imposed); South Carolina
Code Section 14-3-330 (1976) and Rule 201(a), SCACR (stating only final
judgments and limited interlocutory orders are appealable); Good v. Hartford Acc. & Indemn. Co., 201 S.C. 32, 21 S.E.2d 209, 212 (1942) (“a final judgment is one which operates to divest some right in
such a manner as to put
it beyond the power of the Court making the order to place the parties in their
original condition after the expiration of the term; that is, it must put the
case out of Court, and must be final in all matters within the pleadings”); Mid-State
Distributors, Inc. v. Century Importers, Inc., 310 S.C. 330, 334, 426
S.E.2d 777, 780 (1993) (stating orders involving the merits “must finally
determine some substantial matter forming the whole or a part of some cause of
action or defense” and orders affecting a substantial right must “discontinue
an action, prevent an appeal, grant or refuse a new trial, or strike out an
action or defense”).

We deny the State’s
appeal regarding suppression of the breathalyzer
results and videotape of the breathalyzer test pursuant to Rule 220(b)(2),
SCACR, and the following authorities: see State v. Pichardo,
367 S.C. 84, 96, 623 S.E.2d 840, 846-47 (Ct. App. 2005) (“the State’s right to
appeal in a criminal case is a judicially created right”); State v. Belviso,
360 S.C. 112, 115, 600 S.E.2d 68, 70 (Ct. App. 2004) (citing State v.
McKnight, 287 S.C. 167, 337 S.E.2d 208 (1985)) (“[a] pre-trial order
granting the suppression of evidence which significantly impairs the
prosecution of a criminal case is directly appealable under S.C. Code Ann. §
14-3-330(2)(a) (1976)”); State v. Kinner, 301 S.C. 209, 210, 391 S.E.2d
251, 252 (1990) (noting testimony of defendant’s erratic driving and strong
odor of alcohol support a conviction of driving under the influence). 

Accordingly the
order of the trial court is affirmed and the case is remanded for trial.

ANDERSON, SHORT, and THOMAS, JJ., concur.