RUSH v. STATE (2006)

ORDER

In this post-conviction relief case, petitioner has filed a notice of appeal from an order dated December 8, 2005.   This order states that petitioner moved to withdraw his post-conviction relief action at the start of the proceeding, and that the post-conviction relief judge advised petitioner that any withdrawal would result in a dismissal of the action with prejudice.   The order indicates that petitioner was questioned by the judge and includes a finding that petitioner's decision to withdraw the action was being made knowingly and voluntarily.   The order grants the motion to withdraw and dismisses the action with prejudice.

 A party cannot appeal an order issued with the consent of the party.   Hooper v. Rockwell, 334 S.C. 281, 513 S.E.2d 358 (1999);  American Publishing and Engraving Co. v. Gibbes & Co., 59 S.C. 215, 37 S.E. 753 (1901);  Smith v. Lowery, 56 S.C. 493, 35 S.E. 129 (1900);  Varn v. Varn, 32 S.C. 77, 10 S.E. 829 (1890);  Calcutt v. Calcutt, 282 S.C. 565, 320 S.E.2d 55 (Ct.App.1984).   We see no reason why this rule should not be equally applicable to appellate review in post-conviction relief cases.

 In this case, petitioner moved to withdraw despite the fact that he was advised that the withdrawal would result in the dismissal of this matter with prejudice.   Since it was petitioner who sought the withdrawal, he may not appeal the order that resulted when his request was granted.¹  Accordingly, the notice of appeal is dismissed.

IT IS SO ORDERED.

/s/ Jean H. Toal, C.J.,

/s/ James E. Moore, J.

/s/ John H. Waller, Jr., J.

/s/ Costa M. Pleicones, J.

FOOTNOTES

1.   If there was any error in the findings of fact or conclusions of law in the order, these errors should have been raised by a timely motion under either Rule 52 or 59, SCRCP.

BURNETT, J., not participating.