THE STATE OF SOUTH CAROLINA
In The Supreme Court

The State, Respondent,

v.

Rebecca Martin, Petitioner.

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS

Appeal From Lexington County
Marc H. Westbrook, Circuit Court Judge

Opinion No. 25543
Heard September 17, 2002 - Filed October 28, 2002

REVERSED AND VACATED

Robert E. Newton, of Breibart, McCauley & Newton, P.A., of Lexington, for Petitioner.

Senior Assistant General Counsel, South Carolina Department of Public Safety, Frank L. Valenta, Jr., and General Counsel and Deputy Director for Policy, Eugene H. Matthews, of Columbia, for Respondent.

JUSTICE WALLER: We granted a writ of certiorari to review the Court of Appeals opinion in State v. Martin, 341 S.C. 480, 534 S.E.2d 292 (Ct. App. 2000). We reverse.

Through a series of administrative errors, Martin was notified in December 1997, that she had been convicted, in absentia, of driving under the influence (DUI) first on August 26, 1997. A bench warrant was issued for her arrest, she was fined $425.00, and her license was suspended for nearly six months. Nearly six months later, in June 1998, the state sought and obtained an Ishmell [1] order reopening the case on the ground that the traffic ticket had been signed off in error. [2] The circuit court ruled that the states efforts to set aside the ticket were both untimely and improperly handled. [3] Accordingly, the Ishmell order was vacated and the DUI first ticket was reinstated.

The Court of Appeals affirmed the decision to vacate Ishmell order, but vacated the portion of the circuit court's order which required reinstatement of Martins DUI conviction. We reverse the Court of Appeals ruling and reinstate the circuit courts order.

The state took no action between December 1997 and June 1998 to rectify the situation or to notify Martin that her conviction had been erroneously entered. Rather, it issued a bench warrant for her arrest, suspended her drivers license, allowed her to pay a $425.00 fine, and required her to enroll in ADSAP classes and purchase SR-22 insurance in order to obtain a provisional drivers license. Its failure to take any remedial action to remedy this situation in a timely manner therefore precluded its ability to challenge the entry of a conviction on the DUI first ticket. See Rule 29, SCRCrimP(in cases involving appeals from convictions in magistrate's court, post trial motions must be made within ten (10) days after receipt of written notice of entry of the order or judgment disposing of the appeal). The state does not dispute that its motion to set aside the original conviction was untimely. As we noted in Brewer v. South Carolina State Highway Dept, 261 S.C. 52, 56, 198 S.E.2d 256, 257 (1973), a party's time to appeal from a judgment in a magistrate's court or move for a new trial therein . . . begin[s] [when] he has notice of the judgment. Accordingly, as the state concedes it had actual notice of the entry of Martins conviction in December 1997, and failed to timely appeal or take any other action to correct the matter, it was procedurally barred from contesting the validity of that conviction. [4] The Court of Appeals erred in concluding otherwise.

VACATED AND REVERSED.

TOAL, C.J., MOORE, BURNETT and PLEICONES, JJ., concur.