Criminal Practice – Appeals – Immunity – Protection of Persons & Property Act – Prospective Application

State v. Isaac (Lawyers Weekly No. 010-107-13, 10 pp.) (Jean Hoefer Toal, Ch.J.) (Costa M. Pleicones, J., concurring) Appealed from Richland County Circuit Court (Clifton Newman, J.) S.C. S. Ct.

Holding: An order denying a request for immunity under the Protection of Persons and Property Act is not immediately appealable as it is not a final order in the case; it is not an order involving the merits in that it does not finally determine a substantial cause of action or defense; and it is not an interlocutory order or decree in a court of common pleas granting, continuing, modifying, or refusing an injunction or granting, continuing, modifying, or refusing the appointment of a receiver under S.C. Code Ann. § 14-3-330(4).

We dismiss defendant’s appeal of the trial court’s denial of his request for a hearing to determine whether he is immune from prosecution under the Act.

Any error in the denial of a request for immunity from prosecution may be raised on appeal after conviction and sentencing based on the plain language of § 14-3-330(1).

In State v. Duncan, 392 S.C. 404, 709 S.E.2d 662 (2011), we concluded that an order granting a motion to dismiss on the ground that the defendant is immune under the Act is immediately appealable because it is a final order in the case. We clarify Duncan and hold that the denial of a request for immunity under the Act is not immediately appealable.

Where (1) the crimes with which defendant is charged were committed on Oct. 27, 2005; (2) the Act’s effective date is June 9, 2006, and (3) the savings clause of the Act specifically indicates the General Assembly’s intent that the Act be applied prospectively, defendant cannot claim the benefit of the extension of the law.

Dismissed.

Concurrence

(Pleicones, J.) I concur in the decision to dismiss this appeal because the Act does not apply retroactively and thus defendant is not entitled to invoke its protections. I would hold, however, that a pretrial order denying immunity under the Act is immediately appealable under § 14-3-330(4) because it is in the nature of an injunction.