State v. Isaac

Justice PLEICONES.

I concur in the decision to dismiss this appeal because the Act does not apply retroactively and thus appellant is not entitled to invoke its protections. E.g. State v. Dawson, 402 S.C. 160, 740 S.E.2d 501(2013). I would hold, however, that a pretrial order denying immunity under the Act is immediately appealable under S.C.Code Ann. § 14-3-330(4) (Supp.2012) because it is in the nature of an injunction.7

The General Assembly, as is its prerogative, has codified and modified what was at common law a defense, and instructed that a person who establishes that defense may not be criminally prosecuted. The legislature has unequivocally expressed its intent that persons who are rightfully within the Act’s terms are immune from prosecution. Section 16-11-^420 of the Act is titled “Intent and Findings of General Assembly,” and provides in part:

The General Assembly finds that it is proper for law-abiding citizens to protect themselves, their families, and others from intruders and attackers without fear of prosecution or civil action for acting in defense of themselves and others. § 16-11-420(B) (Supp. 2012) (emphasis supplied).

Lest there be any doubt of the legislature’s intent, § 16 — 11— 450 of the Act is titled in part “Immunity from criminal prosecution____” and provides in relevant part “A person who uses deadly force as permitted by the provisions of this article or another applicable provision of law is justified in using deadly force and is immune from criminal prosecution.... ” § 16-11-450(A) (Supp. 2012) (emphasis supplied). In my view, we can honor the General Assembly’s clear mandate only if we can review any pre-trial denial of criminal immunity for reversible error, for to require a defendant wrongly denied immunity to endure a criminal prosecution is to violate the statutory injunction.

I readily acknowledge that an order denying a criminal defendant pre-trial immunity does not fit neatly within our general appealability jurisprudence. In order to effectuate the General Assembly’s explicit instruction, I would read the *189term “common pleas” in § 14-3-330(4), allowing immediate appeals from injunctions, as “trial court” in order to permit this interlocutory appeal from the Court of General Sessions.8 This broad reading of the statute is not unique, however, as the appellate courts regularly apply § 14-3-330, which by its title only governs law cases, to equity matters arising from the family courts. E.g. Terry v. Terry, 400 S.C. 453, 734 S.E.2d 646 (2012); Smith v. Smith, 359 S.C. 393, 597 S.E.2d 188 (Ct.App.2004).

It is the legislature’s prerogative to dictate appealability, and the intent that a person within the Act’s terms be immune from criminal prosecution is clear and unequivocal. I therefore respectfully dissent from the decision holding that a criminal defendant denied immunity must nonetheless submit to prosecution and, if convicted, then seek review of the order denying him the very protection afforded him under the Act.

. The Court of General Session has subject matter jurisdiction to issue injunctions where necessary to protect its proceedings. Ex parte: The State-Record Co., Inc., 332 S.C. 346, 504 S.E.2d 592 (1998).

. In light of the majority’s decision that a pretrial order denying a criminal defendant immunity under the Act is not immediately appeal-able, an individual in that position may now seek relief by filing a common law petition for writ of certiorari in this Court's original jurisdiction. E.g. City of Columbia v. S.C. Pub. Serv. Comm'n, 242 S.C. 528, 131 S.E.2d 705 (1963). Depending on the individual’s circumstances, it is possible that she may invoke other extraordinary writs to prevent her wrongful criminal prosecution.