Following the release of State v. Langford, the S.C. Supreme Court published a new administrative order, effective February 4, 2013, which incorporates the order that was attached to the Langford opinion but is much more detailed, outlining procedures that are to be followed statewide and including procedural changes for bond hearings, “roll calls,” scheduling of plea and trial dates, and preliminary hearings:
IT IS ORDERED that all General Sessions cases shall be processed under the procedures set forth in this order. This Uniform Differentiated Case Management Order supplements the Disposition of Cases in General Sessions Order dated November 21, 2012, and supersedes all previous Administrative Orders implementing Differentiated Case Management in each county. This Order shall be effective February 4, 2013.
Bond hearings: no changes here, at least for Horry County. Defendants must be screened for the public defender by the magistrate or municipal judge at their bond hearing. Defendants are given a date for their Initial Appearance at the bond hearing, and attendance at the Initial Appearance is a condition of their bond. Defendants are informed of their right to a preliminary hearing.
- Initial Appearances will be presided over by a judge – this is a significant change for some counties, including Horry and Georgetown. Previously, no judge was present at roll calls in many counties.
- The preliminary hearing must be requested in writing on or before the Initial Appearance – the current rule, under S.C. Rules of Criminal Procedure 2(b), is that a preliminary hearing must be requested within 10 days of the arrest – in many cases 10 days has gone by before a defendant is able to retain an attorney, and the 15th circuit public defender’s office categorically refuses to request preliminary hearings (or attend them when the client requests it).
- A number of issues are listed that are to be addressed at the Initial Appearance, including representation, mental health issues, discovery, and conflicts.
- At the Initial Appearance all cases will be assigned to a “180 day track.” I am confused about what exactly the “180 day track” is, other than if a case is older than one year beyond the 180 day track (18 months old) it can be transferred from the Solicitor’s control to the “judicial docket” supervised by the Chief Administrative Judge (see below).
- The order states that the Solicitor will provide discovery to the defendant no later than the Initial Appearance, and law enforcement is to provide discovery materials to the Solicitor no later than 15 days prior to the Initial Appearance.
- If law enforcement fails to provide discovery within the deadline, the warrant may be dismissed without prejudice by the judge
- Before a new warrant can be issued, application must be made to the Chief Administrative Judge, and the requesting law enforcement agency must establish good cause for its failure to timely transmit discovery – “[f]ailure to present good cause will result in the refusal to issue the second warrant.” The Order does not require a hearing – my question is, how is the defense to monitor this process and know that these requirements are being followed? Also, what is “good cause?” Is it assuming too much to believe that “we were busy and did not get around to it,” or “I forgot” is not good cause?
- The Second Appearance is to operate as an arraignment – “[a]t the Second Appearance the court will inquire whether a matter is for plea or for trial,” and at the Second Appearance either a plea date or a trial date will be set. This contradicts subsection D of the Order, which says a trial date is not set until the Solicitor files a “Notice of Court Docketing” and that cases more than 18 months old are transferred to the judicial docket. I predict this bit about setting trial dates at the Second Appearance will be ignored or will result in the setting of trial dates that are then ignored.
- Plea offers must be communicated in writing at least 14 days prior to the Second Appearance and accepted or rejected by the defendant in writing prior to the Second Appearance; or the Solicitor’s decision not to extend a plea offer must be communicated in writing 14 days prior to the Second Appearance.
- Defendants who do not have attorneys must appear at the Second Appearance and remain throughout each term of court until excused by the Court.
- Sentencing sheets and plea affidavits must be completed and filled out before the plea date. I have no idea what the Court means by “plea affidavit.” Assuming this is something new that is to be implemented?
- Prelims will be held at the Court which issued the charge. Does this do away with Central Preliminary Hearing Courts? In some counties, including Horry County, all prelims from all courts (including municipal courts) are heard by a magistrate judge at a central location.
- Continuances of preliminary hearings may be granted only in extreme circumstances. A common occurrence at preliminary hearings is the officer does not show up – notice was sent but the officer simply fails to appear without any explanation, and the magistrate will then continue the case at the prosecutor’s request. When the prelim is rescheduled, it happens again until the case is indicted and the defendant no longer has the right to a prelim. Not showing up with no explanation is not an “extreme circumstance.”
- The Court next clarifies the remedy where the officer fails to appear without explanation – “the failure of that affiant to appear and give testimony after notice, will result in the dismissal of the warrant upon motion for dismissal by the Defendant or defense counsel.”
The Court Docket:
- Each term of court the presiding judges will make themselves available from 9:00 – 9:30 am for status conferences which either side can request.
- all cases that are 18 months old or less (the 180 day track plus one year) remain under the control of the Solicitor. When the Solicitor is ready to try the case, they will file a “Notice of Court Docketing” and serve it on all parties. All cases on the Court Docket may be called for trial any time after 30 days from the filing of the Notice of Court Docketing.
- The Clerk will publish a trial roster at least 21 days before each term of court, publish the roster, and distribute the roster to the attorneys who are on it.
- The Order says “[n]othing herein shall affect the Court’s ability to schedule motions or other pretrial proceedings as may be appropriate” – so, who schedules motions and pre-trial proceedings? The clerk, the chief admin judge, or the prosecutor?
- The chief admin judge may add cases to the trial roster or schedule cases for a date certain, subject to the above notice requirements.
The Judicial Docket:
- Cases more than 18 months old (180 day track plus one year) are transferred to the chief admin judge’s supervision, if the Solicitor has not filed a Notice of Court Docketing.
- The Clerk will maintain the Judicial Docket separately from the Court Docket, and it will be supervised by the chief admin judge.
- The chief admin judge will arrange for the scheduling of trial or other disposition of the case and “may upon the request of either party transfer the case to the trial roster.”
- If a case is on the Judicial Docket for more than one year (2 and 1/2 years old at this point) the chief admin judge “will dismiss the case,” absent the Solicitor showing good cause, after notice to both sides and an opportunity to be heard.
- Any case pending more than 4 years after indictment “shall be dismissed” by the chief admin judge, unless the Solicitor shows good cause why it should not be dismissed. The Solicitor must notify any victims within 10 days, file a written response as to why the case should not be dismissed within 30 days, and the Defendant may respond within 30 days. The chief admin judge may schedule a hearing or may dismiss the case without a hearing.
- Both of the above dismissals are without prejudice and may be re-presented to the Grand Jury for indictment unless the chief admin judge specifies otherwise.
Failure to Appear Docket:
- 90 days after a bench warrant is issued for failure to appear, the case will be transferred to a Failure to Appear Docket .
- The case can be restored to active status upon written request of the Solicitor to the Clerk of Court.