The Supreme Court of South Carolina
Re: Uniform Differentiated Case Management
Pursuant to the provisions of Article V, § 4, of the South Carolina Constitution, and in furtherance of this Court’s decision in State v. Langford, Op. No. 27195 (S.C. Sup. Ct. filed November 21, 2012),
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.
The Court directs that in each General Sessions case arising before the various Magistrates and Municipal Courts of the county, the following procedure is to be followed:
A. Bond Hearing
1. Magistrates and Municipal Judges are required to transmit warrants to the Clerk of Court within fifteen (15) days as required by Rule 3(a) of the South Carolina Rules of Criminal Procedure.
2. All Defendants will be screened by the Magistrate at their bond hearing to determine if they qualify for appointment of counsel. The screening will be conducted by the on-duty Magistrate for all Defendants, including those charged by other jurisdictions. If the Defendant qualifies, the Public Defender (PD) will be appointed provided the Defendant takes the necessary steps for that office to assume the case.
3. The Defendant will be served with a Notice of Initial Appearance at his or her bond hearing. The date of the Initial Appearance will be assigned in accordance with the schedule prepared and distributed by the Chief Judge for Administrative Purposes (CJAP). The Defendant’s attendance at the initial appearance will be made a condition of that Defendant’s bond by noting this under Section III of a Personal Recognizance Bond Form or Section D of a Surety Bond Form. At the time that the initial appearance is set, the Judge setting the Defendant’s bond will inform the Defendant, orally and in writing, of his or her right to a Preliminary Hearing.
B. Initial Appearance
1. The Initial and Second Appearances will be presided over by the CJAP or a Judge designated by the CJAP for that purpose. The Initial Appearance will be held and a roll call will be conducted as necessary to ensure attendance. The Clerk of Court is authorized to issue a bench warrant for any Defendant who fails to appear and has not been excused by the CJAP.
2. There will be no continuances of the Initial Appearance.
3. A preliminary hearing must be requested in writing on or before the Initial Appearance date.
4. The following issues will be addressed at the Initial Appearance:
a. If a Defendant qualifies for Court–appointed counsel and has not retained private counsel by his or her initial appearance, the PD will continue to represent the Defendant.
b. If a Defendant qualifies for a PD but has retained private counsel prior to the initial appearance date, that attorney must file a general notice of representation with the Clerk of Court and serve a copy on the Solicitor’s Office. The PD will be relieved of representation at that time.
c. If a Defendant did not qualify for a PD, and private counsel has been retained, a letter of representation must be filed with the Clerk of Court and served on the Solicitor’s Office.
d. Unrepresented Defendants must apply for a PD at the Initial Appearance. The PD’s Office will take applications and if approved, a PD will be assigned that day.
e. Defendants who remain unrepresented at or after the Initial Appearance must appear on their Second Appearance date and remain in court throughout that term until excused by the Court. These Defendants must appear for each successive term of court as required by their bond until their case is disposed.
f. Any mental health issues.
g. Any issues related to the analysis of drugs or other types of evidence.
h. Any other issue that may affect the timing of the disposition of the criminal case including issues related to conflicts of representation.
i. During the Initial Appearance the Solicitor may administratively dismiss case(s) without prejudice based upon insufficient evidence with which to prosecute. Within ten (10) days of such an administrative dismissal, the Solicitor’s office shall notify the Clerk of Court of the dismissal based upon insufficient evidence and shall return the matter to law enforcement for further investigation. Administrative dismissals for this reason shall be coded by the Clerk of Court as a dismissal for insufficient evidence and should not be reported as a dismissal by the Solicitor.
5. In all cases where the Defendant is represented by the PD, the PD will assess the case prior to the Initial Appearance for possible conflicts of interest and resolve those conflicts readily identifiable on that date. The Clerk of Court will, upon Affidavit of Conflict, appoint the next attorney from the list of available attorneys and advise the Defendant of the identity of his or her attorney. The newly appointed counsel will also be notified on that date and a preliminary hearing will be automatically scheduled for the Defendant.
6. The Solicitor and Defendant’s attorney should exchange discovery as early in this process as possible. Accordingly, when feasible, Defendant’s attorney and the State will enter into negotiations concerning pleas at the Initial Appearance. Any plea offer(s) must be communicated in writing to Defendant or the Defendant’s attorney at least fourteen (14) days prior to Defendant’s Second Appearance and accepted or rejected in writing prior to Defendant’s Second Appearance. Likewise, the decision not to negotiate or extend a plea offer shall be communicated to Defendant or the Defendant’s attorney in writing by the Solicitor at least fourteen (14) days prior to Defendant’s Second Appearance. Should the plea offer be accepted by the Defendant a written acceptance signed by the Defendant and the Defendant’s attorney must be served on the Solicitor assigned to the case. All plea negotiation documents must be filed in the Office of the Clerk of Court upon issuance by the Solicitor or acceptance by the Defendant.
7. Not later than the Initial Appearance, the Solicitor will provide discovery to Defendant or Defendant’s attorney of record in all cases in which the appropriate motions have been filed with the Clerk of Court and served on the Solicitor’s Office.
8. All law enforcement agencies are required to forward all existing case reports; investigative reports; and, incident reports, as well as other discovery, to the Solicitor’s Office within thirty (30) days of a warrant being issued, but not later than fifteen (15) days prior to Defendant’s Initial Appearance, if the Initial Appearance is less than thirty (30) days from the date the warrant is issued.
If the law enforcement agency fails to provide discovery within this deadline, the warrant(s) may be dismissed without prejudice by the CJAP or another Circuit Judge designated by him as his judicial representative.
Notification will be provided to the Defendant, or Defendant’s attorney of record, and Defendant’s bondsman that Defendant is not required to appear at the Initial Appearance when the warrants are dismissed. Prior to the issuance of another warrant after dismissal without prejudice of the original warrant for failure to timely comply with discovery transmittal, the requesting law enforcement agency must establish good cause for its initial failure to timely transmit discovery to the CJAP or to another Circuit Judge to whom that authority has been delegated by the CJAP. Failure to present good cause will result in the refusal to issue the second warrant. Application must be made to the CJAP before a new warrant is issued in a case initially dismissed for failure to provide timely discovery.
9. At the Initial Appearance all cases will be assigned to a 180 day track. The CJAP may entertain motions to remove any case from the track and establish a scheduling order where appropriate.
10. At the Second Appearance the court will inquire whether a matter is for plea or for trial. If the matter is a plea, the Court will assign a date and time for the plea hearing to be held. All sentencing sheets and other paperwork must be completed by the parties prior to the day the matter is set for a plea hearing. The plea affidavit must be completed by the Defendant, if self-represented, and by the Defendant and the Defendant’s attorney prior to the time scheduled for the taking of the plea.
11. If the plea negotiations are unsuccessful at the Second Appearance the case will be scheduled for trial before one of the presiding General Sessions judges. Except for good cause shown to the CJAP, the CJAP must hear any plea taken after the case is scheduled for trial; or such information will be provided to the court as may be required by the CJAP prior to the taking of the plea.
12. Cases may be resolved at any time prior to any of the scheduled proceedings or the times allowed by the guidelines set out herein.
C. Preliminary Hearing
1. Preliminary hearings will be held at the appropriate Court issuing the charge against the Defendant.
2. Continuances of preliminary hearings may be granted only in extreme circumstances.
3. The Defendant or the Defendant’s attorney must be present in order for a preliminary hearing to proceed. If a hearing has been requested in a case that involves an individual affiant, 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.
D. General Sessions Court Practice
Chambers Availability: The presiding Judges will be available from 9:00-9:30 AM on Tuesday through Friday of each General Sessions term to hold case status conferences with attorneys for the State and defense counsel. Either party may request conferences.
Case Disposition: Cases within the 180 day track or cases that have exceeded the 180 day track by less than one (1) year, shall remain under the control of the Solicitor, subject to the provisions set forth below:
1. General Docket:
a. The General Docket consists of all pending General Sessions matters. Absent the grant of a speedy trial motion, the Solicitor shall have the initial responsibility for designating when a case is ready for trial. Upon determining that a case is ready for trial, the Solicitor shall file with the Clerk of Court a “NOTICE OF COURT DOCKETING” on a form prescribed by the Supreme Court and shall serve all parties and counsel of record. Upon receiving such notice, the Clerk shall place the case on the Court Docket and the matter may be called for trial any time after thirty (30) days from the filing of the NOTICE OF COURT DOCKETING. The Court Docket consists of all matters that the Solicitor has deemed ready for trial. Once the case is placed on the Court Docket, the Court assumes the responsibility for setting a trial date and the Clerk, under the direction and supervision of the CJAP, shall publish a trial roster from the Court Docket of cases subject for trial at least twenty-one (21) days before each term of court. Publication shall be effected once the Clerk makes the trial roster available in the Clerk’s office or on the Clerk’s internet site. The Clerk shall also distribute the trial roster to those attorneys listed upon it by Fax, US Mail, hand delivery, or electronic delivery. Cases on the trial roster not reached for trial will be subject to being called for the next two terms of court before being republished. It is the responsibility of each defense attorney to notify the Defendant that the case is scheduled for trial and to remind the Defendant of the right and obligation to be present at trial. Motions for continuance or other relief from a published trial roster shall be made in accordance with Rule 7, SCRCrimP. The CJAP or presiding Judge shall rule on the motion.
b. Nothing herein shall affect the Court’s ability to schedule motions or other pretrial proceedings as may be appropriate, or the right of the CJAP to add cases to any trial roster or designate cases for a day certain as the CJAP deems appropriate, subject to the notification requirements set forth in paragraph (D)(1)(a), above.
Cases more than one year beyond their 180 day track will be automatically transferred to the CJAP’s supervision as follows:
2. Judicial Docket:
a. If the Solicitor has not filed a NOTICE OF COURT DOCKETING in accordance with Paragraph (D)(1)(a) above for any case more than one (1) year beyond its assigned track, it will be automatically transferred to the Judicial Docket, which the Clerk shall maintain separate and apart from the regular Court Docket. The CJAP will administer and supervise the Judicial Docket. The Solicitor must notify the Clerk within fifteen (15) days after expiration of this period of time of all cases that are in this category and furnish the following information: (1) Indictment number; (2) Defendant’s name; (3) Date of Arrest; (4) Assigned Assistant Solicitor; (5) Defense Counsel; (6) Date of Indictment (True Bill); (7) Track expiration date; (8) Prior request(s) for continuance. The Clerk will maintain the Judicial Docket which will include this information.
b. Upon placement on the Judicial Docket, the CJAP shall arrange for the scheduling of trial or other disposition of the case. Additionally, the CJAP may upon the request of any party transfer the case to the trial roster in accordance with Paragraphs (D)(1)(a) and (b).
c. If the case has not been disposed of more than one (1) year following its transfer to the Judicial Docket, the CJAP will dismiss the case, absent the Solicitor establishing good cause. Both the Solicitor and the Defendant shall be notified of the pending dismissal and be given an opportunity to be heard. Cases dismissed pursuant to this provision will be without prejudice, unless otherwise specified by the CJAP. The Solicitor will notify the victim(s) of cases dismissed pursuant to this provision.
3. Non-Track Cases: The Solicitor shall furnish to the CJAP a quarterly status report of all non-track cases. The report shall contain information regarding the progress of the case and the expected disposition date.
4. Old Case Disposition: Any case, including non-track cases, pending four (4) or more years from the date of indictment by the Grand Jury shall be dismissed by the CJAP, unless the Solicitor shall show good cause why it should not be dismissed. Such dismissal is without prejudice, unless otherwise specified by the CJAP and the Solicitor shall have the right to re-present the matter to the Grand Jury. Before ordering dismissal, the Clerk of Court shall notify the Solicitor and the Defendant of the Court’s intention to dismiss the case. The Solicitor shall: (1) within ten (10) days of receiving the notice from the Court, notify the victim(s) in writing of the Court’s intended disposition and invite the victim(s) to file a written response with the Solicitor within ten (10) days; and (2) within thirty (30) days file a written response with the Court setting forth in detail the reasons, including the response(s) of the victim(s), why the case should not be dismissed and advising the court of the expected time of disposition. The Defendant may submit a written response within thirty (30) days of the Solicitor’s filing. The CJAP may schedule a hearing, dismiss the case without a hearing, or take such further action as may be appropriate. Failure to respond as set forth herein will result in the matter being dismissed pursuant to this provision. If the Solicitor shows good cause, the case shall automatically be transferred to the Judicial Docket.
5. Defendant’s Failure to Appear:
a. Ninety (90) days after a bench warrant is issued for a Defendant who fails to appear, the case will be administratively transferred to FAILURE TO APPEAR status and removed from the docket. The Clerk shall transmit this information to Court Administration and that office shall remove the case from its list of active cases.
b. The case may be transferred from the FAILURE TO APPEAR DOCKET to active case status upon written request of the Solicitor to the Clerk of Court who shall restore the case and notify the S.C. Judicial Department of this restoration. The case shall then follow the disposition procedure set forth in Paragraphs (D)(1), (2), and (4 ).
s/Jean H. Toal C.J.
s/Donald W. Beatty J.
s/John W. Kittredge J.
s/Kaye G. Hearn J.
Because I dissent from the State v. Langford opinion, I respectfully do not join in this order.
s/Costa M. Pleicones J.
November 21, 2012
Columbia, South Carolina