Can I File a PCR Action if I’m Not in Custody?

In Brown v. State, the SC Supreme Court held that a defendant who was convicted of possession with intent to distribute marijuana, who had completed their sentence, and who did not present evidence on the record of ongoing consequences from their conviction is entitled to a PCR hearing.

The PCR court (former Supreme Court Chief Justice Jean Toal was the lower court judge) had dismissed Brown’s PCR without allowing him a hearing – the Supreme Court reversed Toal’s decision and remanded the case for a full hearing.

The Court held that a person is entitled to file a post-conviction relief (PCR) action if they have a criminal conviction and if they allege that conviction “was in violation of the Constitution of the United States or the Constitution or laws of this State.”

Do You Have to Be in Custody to File a PCR Action in SC?

A PCR applicant does not have to be in custody to qualify for post-conviction relief.

In 1997, the SC Supreme Court (including then-Associate Justice Jean Toal) held, in Jackson v. State, that a PCR applicant who paid a fine on a simple possession of marijuana charge, was not incarcerated, but presented evidence of the ongoing effects of the conviction was entitled to PCR.

Technically, Jackson did not address whether it was necessary to allege ongoing collateral consequences from the conviction. It was, however, implied because the petitioner in Jackson did allege ongoing collateral consequences as noted by the Supreme Court.

Based on Jackson, most PCR attorneys routinely list the ongoing effects of a conviction when the petitioner is not in custody, which is not terribly difficult – there are ongoing collateral consequences for any criminal conviction, aren’t there? For example, the stigma of having a criminal conviction, and its impact on employment, housing, or financial aid opportunities are a real effect of any criminal conviction.

Do You Have to Allege Ongoing Collateral Consequences to File a PCR Action?


The Supreme Court in Brown has made it clear that you do not have to allege the ongoing effects of the conviction in the PCR petition or at the hearing – the plain language of the statute does not require it.

SC’s PCR statute says:

Any person who has been convicted of, or sentenced for, a crime and who claims:

(1) That the conviction or the sentence was in violation of the Constitution of the United States or the Constitution or laws of this State;

. . . . may institute . . . a proceeding under this chapter to secure relief.

There are only two requirements under SC’s PCR law:

  1. A conviction; and
  2. The conviction or sentence was in violation of the Constitution or SC law.

The courts cannot add an additional requirement to the PCR law – they can interpret the law, but any addition or deletion is left to the legislature.

PCR and Marijuana Defense Lawyer in Charleston, SC

Attorney Grant B. Smaldone accepts criminal defense, criminal appeals, and post-conviction relief (PCR) cases in the Charleston area. If you are facing criminal charges or if you have been convicted of a crime and want to appeal, call now at (843) 808-2100 or fill out our online contact form to schedule a free consultation.

Tags PCR