Cite as: 530 U. S. 156 (2000)
Stevens, J., dissenting
been filed in Simmons' case.10 If the availability of such a post-trial procedure makes Ramdass' parole ineligibility less than inevitable, the same must also have been true for Simmons.11 Accordingly, the mere availability of such a procedure is not a fact that distinguishes the two cases.
In the end, though, the plurality does not really rest upon inevitability at all, nor upon the alleged lack of inevitability represented by the post-trial motion procedure. Instead, the plurality relies upon the fact that at the time of Ramdass' sentencing phase, although the jury had rendered a guilty verdict in the Domino's Pizza robbery case, the trial judge had not yet entered judgment on the verdict. Ante, at 160, 167, 173-174, 176. That entry of judgment would come 19 days later. Ante, at 160. The distinction is important, the plurality says, because "[a] judgment, not a verdict, is the usual measure for finality in the trial court," ante, at 176, whereas a verdict without a judgment is "uncertain," ibid. The plurality is, of course, correct that the missing entry of judgment is a circumstance that was not present in Simmons.
10 South Carolina Rule of Criminal Procedure 29(b) (1999) reads, in relevant part: "A motion for a new trial based on after-discovered evidence must be made within a reasonable period of time after the discovery of the evidence."
11 It is true, of course, that a motion for a new trial under South Carolina's rule must be predicated on the discovery of new evidence, but that does not meaningfully distinguish its rule from Virginia's rule, under which a verdict can be set aside only for trial error or insufficient evidence.
The plurality says that because Simmons pleaded guilty to his prior crime, he was foreclosed from filing a motion under South Carolina's rule. Ante, at 167. For this proposition, the plurality cites Whetsell v. State, 276 S. C. 295, 277 S. E. 2d 891 (1981). This is just flat wrong. See Johnson v. Catoe, 336 S. C. 354, 358-359, 520 S. E. 2d 617, 619 (1999) ("Whetsell does not stand for the proposition that a defendant who admits his guilt is barred from collaterally attacking his conviction. Whetsell stands only for the narrow proposition that a [postconviction relief] applicant who has pled guilty on advice of counsel cannot satisfy the prejudice prong on collateral attack if he states he would have pled guilty in any event").
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