A South Carolina Criminal Defense Blog

UDCMO – motion hearings and other pre-trial matters

The Uniform Differentiated Case Management Order, discussed here, here, and here, has one more glaring omission – there is no mention of scheduling of motion hearings and other pre-trial matters, other than section (b) of the General Docket discussion which says “Nothing herein shall affect the Court’s ability to schedule motions or other pretrial proceedings as may be appropriate . . .,” and the mandate that circuit court judges will be available for status conferences which may be requested by either side.

Currently, the standard practice is to file your motions and serve them on the solicitor’s office.  The expectation is that the solicitor’s office will then schedule the hearing during the next term of court.  The reality is that motions for bond or motions to lift bench warrants are usually scheduled, and often other motions are ignored.  When motions are scheduled, they are scheduled when the prosecutor wants them to be scheduled if at all, and the prosecutor, by choosing the term of court, chooses the judge that hears the motion.

Pre-trial motions, which could be dispositive, are routinely heard the day of trial, even though it would save court time and preparation by both sides if they were heard in advance of trial, and sometimes could result in a resolution of the case.  It is not unusual for a case to be called for trial while there are outstanding motions to compel discovery – materials that are needed for effective trial preparation.  In some cases, motions for bond are ignored until the motion is copied to the chief administrative judge along with a record of unsuccessful attempts to get the solicitor’s office to schedule a hearing.

In Common Pleas Court or Family Court a motion is filed with the Clerk, and the Clerk schedules a hearing.  The system of allowing prosecutors to schedule hearings on motions is no different than a system that requires civil defense lawyers to file their motions, serve them on the plaintiff’s attorney, then allow the plaintiff’s attorney to schedule a hearing when they are ready and in front of the judge of their choosing.  This needs to be fixed as much as the trial docketing system needs to be fixed.

I propose that the Clerk of Court take over the scheduling of motion hearings, just as they do in every court but General Sessions.  This is a gap in the Supreme Court’s UDCMO that needs to be addressed.

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