Ex Parte State
| Citation | 263 S.C. 363,210 S.E.2d 600 |
| Decision Date | 12 December 1974 |
| Docket Number | No. 19928,19928 |
| Court | United States State Supreme Court of South Carolina |
| Parties | Ex parte the STATE of South Carolina, Appellant. In re Joseph Norman BRITTIAN, Child Under the Age of Seventeen Years, Respondent. |
Atty. Gen. Daniel R. McLeod, Asst. Atty. Gen. Robert M. Ariail and Staff Atty. Wade S. Kolb, Jr., Columbia, for appellant.
Corley, Sandlin & Perry, Columbia, for respondent.
Judge J. McNary Spigner, of the Family Court of Richland County, dismissed charges against Joseph N. Brittian. The State has appealed.
On February 12, 1974, two petitions were filed in the Family Court of Richland County against Brittian. He was charged with shoplifting and possession of marijuana. The hearing was scheduled for 3:30 p.m. on March 28.
On the day before the scheduled hearing the prosecutor, Jan Strifling, learned that an essential witness, a chemist from SLED, would be unable to attend. Mr. Strifling informed counsel for Brittian and Special Judge Herbert W. Louthian of the family court that the prosecution elected not to call the case for trial as scheduled.
Notwithstanding such notice, Brittian's counsel appeared at the time scheduled for the hearing and was ready to proceed. No one was present to prosecute and Brittian's counsel moved to dismiss the case. Judge Louthian overruled the motion and continued the case 'in the interest of justice and fairness to the prosecution.'
The hearing was rescheduled for April 5, at which time Judge Spigner was presiding over the same court. Present for the hearing were attorney Bundt Wilson for the prosecution, and Brittian's counsel. Brittian's counsel renewed the motion for a dismissal and the same was granted by Judge Spigner, who based his decision on § 15--1190 of the South Carolina Code (1962). That section reads as follows:
' § 15--1190. Hearing and adjournment thereof.--Upon the return of the summons or other process or after any child has been taken into custody and at the time set for the hearing the court shall proceed to hear and determine the case.
The court from time to time may adjourn the hearing and inquire into the habits, surroundings, conditions and tendencies of the child so as to enable the court to render such order or judgment as shall conserve the welfare of the child and carry out the objects of this chapter. During such adjournments the child may be placed in the custody of a parent, guardian, relative or other fit person and under the supervision of a probation officer if the court so directs.'
It was the reasoning of Judge Spigner, and he so held in his order, that 'The brief of the defense brings to the Court's attention Section 15--1190 which is not in conflict with Chapter 6.1 of Title 15, South Carolina Code of Laws, 1962. The Section requires in part '. . . at the time set for hearing the Court shall proceed to hear and determine the case."
The State argues that § 15--1190 is not a part of the all inclusive Family Court Act, § 15--1095 et seq. There is no provision in the Family Court Act which governs the control and handling of cases.
The first question we are called upon to answer is, 'Did the failure of the State to proceed with the prosecution at the scheduled time necessitate or warrant dismissal of the case?'
Assuming without so deciding that § 15--1190 is applicable to a proceeding in the Family Court of Richland County, we are of the opinion that the failure of the State to prosecute as scheduled does not warrant a dismissal of the case by the judge.
Even if the section is applicable, it cannot be interpreted in a manner that would undermine the purpose and spirit of the Family Court Act. Sectin 15--1095.19 of the Family Court Act states, 'The hearings shall be conducted in an informal manner and may be adjourned from time to time.' Although an adjournment is not the same as continuing a case, there is no necessity to distinguish the two in the informal and relaxed setting of a family court. Both the welfare of the child and the general welfare of the public must be considered by the family court.
Section 15--1095.20(e) provides that the family court may dispose of a case by dismissal After 'a finding of the facts.' However, there is no provision granting the court the power to dismiss a case Before a hearing.
21 Am.Jur.2d Criminal Law § 517 (1965) reads in part:
In a recent Illinois case,...
To continue reading
Request your trial
-
State v. Needs, 24856.
...may, of course, request the dismissal of an indictment or charge. State v. Ridge, 269 S.C. 61, 236 S.E.2d 401 (1977); Ex Parte State, 263 S.C. 363, 210 S.E.2d 600 (1974). In this case, the evidence showed that Ms. Smith had concealed information and lied to investigators to protect appellan......
-
State v. Williams
...of the prosecutor....State v. Ridge , 269 S.C. 61, 65, 236 S.E.2d 401, 402 (1977) (alterations by court) (quoting In re Brittian , 263 S.C. 363, 366, 210 S.E.2d 600, 601 (1974) ). The magistrate erred in dismissing the case. The proper remedy for evidence obtained in violation of the Fourth......
-
State v. Ridge
...the solicitor to nol pros the indictment he attempted to. There remains the question of the second indictment. In In re Brittian, 263 S.C. 363, 366, 210 S.E.2d 600, 601 (1974), this Court quoted with approval 21 Am.Jur.2d Criminal Law, § 517 "A statute may authorize the court, either of its......
-
Murphy v. Murphy, 20466
...and allegations. The actions taken by Judge Bates were without authority of law and of no effect. Ex Parte The State of South Carolina (In Re Brittian), 263 S.C. 363, 210 S.E.2d 600 (1974). LEWIS, C. J., and LITTLEJOHN, NESS and GREGORY, JJ., concur. ...