(dissenting):
I respectfully dissent. I agree with the State’s contention that the post-conviction relief judge improperly vacated respondent’s convictions and granted a new trial.
First, the State contends the PCR judge erred in finding respondent received ineffective assistance of counsel regarding the forgery charges. Respondent’s mother, Anna Jolley, initiated the forgery charges against him. The PCR judge found respondent was denied effective assistance of counsel because counsel “neglected to contact Ms. Jolley to ascertain the circumstances of the forgery charges and her present attitude toward her son.” This finding of ineffective assistance is without support in the record. See Stone v. State, 294 S.C. 286, 363 S.E. (2d) 903 (1988) (standard of review).
To prove ineffective assistance of counsel, a PCR applicant must show that counsel’s performance was deficient and that the deficient performance so prejudiced the defense as to deprive the defendant of a fair trial. Butler v. State, 286 S.C. 441, 334 S.E. (2d) 813 (1985); see also Strickland, v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. (2d) 674 (1984). The court must indulge a strong presumption that counsel’s performance was within the range of reasonable professional assistance. Id.
Ms. Jolley testified before the grand jury concerning the forgery charges; she was also present at respondent’s preliminary hearing. Although she testified at the PCR hearing that she wished to drop the charges against respondent, neither she nor respondent communicated this to counsel. Since Ms. Jolley was present at the pretrial hearings and expressed no desire to drop the charges, counsel’s failure to question her in this regard does not constitute deficient performance. Moreover, respondent failed to demonstrate any prejudice since the State could have pursued the charges even if Ms. Jolley did not wish to do so.
Second, the State contests the PCR judge’s finding of ineffective assistance regarding the convictions for second degree burglary. Respondent was convicted of petit larceny in magis*304trate’s court. He was then indicted for first degree burglary allegedly occurring at the same date, time, and place. On counsel’s advice, respondent pled guilty to second degree burglary. The PCR judge found respondent had a “possible” double jeopardy defense in view of his prior conviction for petit larceny. He concluded respondent was denied effective assistance of counsel when counsel failed to raise a double jeopardy defense.
I find no evidence to support this finding of ineffective assistance. The PCR judge found the prior conviction for petit larceny “was not published or recorded in a manner that should have been discovered by [counsel].” He further found the failure to present a double jeopardy defense was “not necessarily due to the fault of [counsel].” In view of these findings that counsel’s performance was not deficient, it was error to grant PCR on this issue.
Moreover, the PCR judge found only that the double jeopardy issue was a “possible” defense. There is no evidence in the record before us that petitioner was prejudiced by the failure to raise double jeopardy because there are no facts to indicate whether to establish an element of burglary, the State sought to prove conduct for which petitioner had already been prosecuted in the petit larceny trial. See State v. Magazine, — S.C. —, 393 S.E. (2d) 385 (1990). Nor does the prior conviction for petit larceny bar the subsequent indictment for first degree burglary under Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932), since each offense requires proof of an element the other does not. I conclude the record does not support the PCR judge’s finding of ineffective assistance of counsel in failing to raise a double jeopardy issue.
Accordingly, I would reverse the order of the PCR court and reinstate respondent’s convictions.