(a) Procedure. The procedure for post-conviction relief is provided by the Uniform Post-Conviction Procedure Act (Act), S.C. Code Ann. §§ 17-27-10 to -120 (1985). The South Carolina Rules of Civil Procedure shall apply to the extent that they are not inconsistent with the Act.
Rule 71.1.Post-conviction relief actions
Group VIII: Provisional and Final Remedies and Special Proceedings · Not amended since adoption on record · Last verified July 13, 2026
In one sentenceRule 71.1 governs post-conviction relief actions, an independent civil proceeding under South Carolina's Uniform Post-Conviction Procedure Act, setting the timing for filing, the caption format, appointment of counsel, the applicant's burden of proof, and the path to appellate review.
Full Text of Rule 71.1
(b) Time and Form of Application. An application for post-conviction relief cannot be made while an appeal from the conviction or sentence is pending or during the time in which an appeal may be perfected. All applications shall be made on the form set out in the Appendix of Forms. The Office of Court Administration shall insure that an adequate quantity of these forms are available to the circuit court clerks for distribution to persons seeking post-conviction relief.
(c) Independent Action. An application filed under the Act is an independent civil action which should be separately filed and indexed by the clerk of court. The caption in all post-conviction relief actions shall read: Full Name and Prison number (if any) of Applicant v. State of South Carolina.
(d) Appointment of Counsel for Hearing. If, after the State has filed its return, the application presents questions of law or fact which will require a hearing, the court shall promptly appoint counsel to assist the applicant if he is indigent. Counsel shall be given a reasonable time to confer with the applicant. Counsel shall insure that all available grounds for relief are included in the application and shall amend the application if necessary.
(e) Burden of Proof. The applicant has the burden of establishing his entitlement to relief by a preponderance of the evidence.
(g) Appellate Review; Continuing Representation. A final decision entered under the Act shall be reviewed according to the procedure specified by Rule 243, SCACR. If an applicant represented by counsel desires to appeal, counsel shall serve and file a Notice of Appeal as required by Rule 243, SCACR, and shall continue to represent the applicant on appeal unless automatically relieved under Rule 602, SCACR, or allowed to withdraw under Rule 264, SCACR. If the applicant is indigent, counsel shall assist the applicant in obtaining representation by the Division of Appellate Defense of the Office of Indigent Defense.
Notes
Note to 1990 Amendment: This rule is based in part on former Supreme Court Rule 50(1)-(8), and has no counterpart in the Federal Rules.
Note to 2001 Amendments: These amendments consolidate former Rule 71.1 (f) and (g) and change the method of appointment of counsel for indigents on appeal to conform to Rule 602, SCACR.
Note to 2004 Amendment: The 2004 Amendment clarifies the process for filing and notification of parties of filed orders in post- conviction relief actions. Amended by Order dated April 28, 2004.
Note to 2007 Amendment: In 2005, the Office of Appellate Defense became a division of the Office of Indigent Defense. This amendment reflects this organizational change. Note to 2009 Amendment References to the South Carolina Appellate Court Rules in Rule 71.1 were amended to reflect changes in the numbering of those rules by Orders of the South Carolina Supreme Court dated January 29, 2009 and April 29, 2009.
Plain-English Summary
A post-conviction relief action is not an appeal; it is its own separate civil lawsuit, filed and indexed by the clerk as its own case, with a caption naming the applicant, by full name and prison number if there is one, against the State of South Carolina. Rule 71.1 folds the civil rules into that process only to the extent they do not conflict with the Uniform Post-Conviction Procedure Act, which remains the primary source of authority.
Timing matters here in a way that trips people up: an application cannot be filed while a direct appeal from the conviction or sentence is pending, or during the window in which one could still be perfected. Applications must use the standard form kept in the Appendix of Forms, and the Office of Court Administration is responsible for keeping clerks supplied with enough copies. Once the State files its return, if the application raises genuine questions of law or fact needing a hearing, the court appoints counsel for an indigent applicant, and that counsel is expected to make sure every available ground for relief gets into the application, amending it if necessary.
The applicant, not the State, carries the burden of proving entitlement to relief, and that burden is the ordinary civil standard: a preponderance of the evidence. When the post-conviction relief judge signs a final order, the clerk files it and serves notice on the parties the same way notice of judgment entry works under Rule 77(d). From there, review runs through the appellate court rules rather than through this rule directly, and appointed counsel is expected to keep representing an indigent applicant through that appeal, connecting the applicant with appellate defense resources unless properly relieved or allowed to withdraw.
Frequently Asked Questions
Can someone file for post-conviction relief while their direct appeal is still pending?
No. Rule 71.1(b) bars an application while an appeal from the conviction or sentence is pending, or during the period in which such an appeal could still be perfected.
Is a post-conviction relief action treated as part of the original criminal case?
No. Rule 71.1(c) treats it as an independent civil action that the clerk separately files and indexes, captioned as the applicant against the State of South Carolina.
Who has to prove the case in a post-conviction relief proceeding?
The applicant does. Rule 71.1(e) places the burden on the applicant to establish entitlement to relief by a preponderance of the evidence, the standard civil burden.
When does an indigent applicant get appointed counsel?
Under Rule 71.1(d), once the State has filed its return, if the application presents questions of law or fact requiring a hearing, the court promptly appoints counsel for an indigent applicant, who is given reasonable time to confer with the applicant and to amend the application to cover all available grounds.
What form must a post-conviction relief application use?
Rule 71.1(b) requires applications to be made on the standard form set out in the Appendix of Forms, which the Office of Court Administration keeps circuit clerks supplied with.
How does an applicant appeal a denial of post-conviction relief?
Rule 71.1(g) directs that review of a final decision proceeds under the appellate court rules, and counsel for a represented applicant must serve and file a notice of appeal and continue representing the applicant unless properly relieved or permitted to withdraw.
Source & verification. Rule text, official Notes, and amendment
history are reproduced verbatim from the South Carolina Rules of Civil Procedure,
adopted by the Supreme Court of South Carolina. Last verified July 13, 2026. ·
Official source
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