State v. Ridge, No. 20455

CourtUnited States State Supreme Court of South Carolina
Writing for the CourtGREGORY; LEWIS, C. J. and LITTLEJOHN; RHODES; NESS
Citation236 S.E.2d 401,269 S.C. 61
PartiesThe STATE, Appellant, v. John RIDGE, Respondent.
Decision Date22 June 1977
Docket NumberNo. 20455

Page 401

236 S.E.2d 401
269 S.C. 61
The STATE, Appellant,
v.
John RIDGE, Respondent.
No. 20455.
Supreme Court of South Carolina.
June 22, 1977.

[269 S.C. 62] Atty. Gen. Daniel R. McLeod and Asst. Atty. Gen. Joseph R. Barker, Sol. James C. Anders and Asst. Sol. J. Dennis Bolt, Columbia, for appellant.

Terrell L. Glenn and Thomas H. Pope, III, Columbia, for respondent.

[269 S.C. 63] GREGORY, Justice.

This case concerns the dismissal of two indictments with prejudice over the objection of the solicitor. The State appeals. We find the trial judge erred, and reverse.

Respondent was charged by the Richland County Grand Jury in two indictments with possession and sale of drugs. Trial was scheduled in the Court of General Sessions for Richland County and was postponed twice by the Solicitor's Office, once by respondent and once by agreement of the parties. Finally, an assistant solicitor scheduled the case for the morning of July 26, 1976.

On that morning respondent's counsel ("counsel") appeared with respondent and witnesses. The solicitor was also present. What then occurred is not altogether clear from the record. Apparently the solicitor had set only one indictment for trial. Counsel therefore made a motion in chambers for the indictments to be consolidated, as they involved similar incidents and the same witnesses. It is inferable that the judge granted this motion.

[269 S.C. 64] In any event, before the trial started (the jurors had not yet been drawn) the solicitor told counsel he would not try the case because one of the State's important witnesses was on vacation. In open court the solicitor, counsel and the judge conferred. Counsel moved to dismiss the case for lack of prosecution. No motion for dismissal on the ground of denial of a speedy trial was ever made. The judge ordered the solicitor to try the case or dismiss it, whereupon the solicitor offered to enter a nolle prosequi on one indictment, which he said was the only one he had "called" (set) for trial. The judge rejected his offer and dismissed both indictments with prejudice.

Page 402

Later in the day the solicitor stated for the record that he had not, that morning, "called" either indictment for trial.

Appellant argues essentially that the trial judge improperly interfered with the solicitor's control over the case.

"( T)he solicitor has authority to call cases in such order and in such manner as will facilitate the efficient administration of his official duties, subject to the overall broad supervision of the trial judge." State v. Mikell, 257 S.C. 315, 322, 185 S.E.2d 814, 816-17 (1971). The supervision of the judge does not extend to or justify the dismissals here.

In this State, the entering of a nolle prosequi at any time before the jury is impaneled and sworn is within the discretion of the solicitor; the trial judge may not direct or prevent a nol pros at that time. State v. Charles, 183 S.C. 188, 190 S.E. 466 (1937). The only exception to this rule is when the judge finds the solicitor has acted corruptly. State v. Charles,supra. Other jurisdictions have expanded this exception somewhat, to include "capricious and vexatiously repetitious" exercise of the right to nol pros. See District of Columbia v. Dixon, 230 A.2d 481 (D.C.App.1967); State ex rel. Bokowsky v. Rudman, 111 N.H. 57, 274 A.2d 785 (1971).

[269 S.C. 65] We find neither corrupt nor capricious exercise of the right to nol pros in this case. Furthermore, it does not appear that the solicitor was harassing respondent with repeated delays of the case. The trial judge might have correctly concluded that the solicitor was derelict in his duty of marshalling his witnesses; from the record we cannot say. But regardless, the judge erred in refusing to allow the solicitor to enter the nol pros, because he did not find the solicitor was acting corruptly or capriciously. Thus we find the lower court erred in refusing to allow 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 (1965):

"A statute may authorize the court, either of its own motion or on the application of the prosecuting officer, to order an indictment or prosecution dismissed. But in the absence of such a statute, a court has no power . . . to dismiss a criminal prosecution except at the instance of the prosecutor. . . ."

We adhere to this statement and apply it to the present case.

Accordingly, the order dismissing both indictments is

Reversed.

LEWIS, C. J. and LITTLEJOHN, J., concur.

NESS and RHODES, JJ., dissent.

RHODES, Justice (dissenting):

We are presented in this case with an appeal by the State from the trial judge's dismissal of two indictments with prejudice. Finding no error of law, I would affirm.

The Richland County Grand Jury returned true bills against the respondent on indictments 75-G.S.-40-2743 and 75-G.S.-40-2817. Both indictments charged the respondent with illegal possession and sales of drugs. The first indictment[269 S.C. 66] was returned on October 20, 1975, and related to an alleged transaction on December 5, 1974. The second was returned on December 8, 1975, and related to an alleged transaction on December 11, 1974. Prior to the indictments, the respondent was arrested and formally...

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13 practice notes
  • State v. Needs, No. 24856.
    • United States
    • United States State Supreme Court of South Carolina
    • November 23, 1998
    ...a statute grants that power to the court. The prosecutor 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 In this case, the evidence showed that Ms. Smith had concealed informat......
  • State v. Williams, Opinion No. 5405
    • United States
    • Court of Appeals of South Carolina
    • May 25, 2016
    ...of such a statute, a court has no power ... to dismiss a criminal prosecution except at the instance 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 magist......
  • Manning v. Engelkes, No. 62521
    • United States
    • United States State Supreme Court of Iowa
    • June 27, 1979
    ...1293 (La.1978); Food Fair Stores, Inc. v. Jay, 283 Md. 205, 389 A.2d 874 (1978); State v. Hoopes, 534 S.W.2d 26 (Mo.1976); State v. Ridge, 269 S.C. 61, 236 S.E.2d 401 (1977); and State v. Dopp, 127 Vt. 573, 255 A.2d 190 In Iowa the common law rule has been altered by enactment of Iowa R.Cri......
  • Reed v. Becka, No. 2924.
    • United States
    • Court of Appeals of South Carolina
    • January 18, 1999
    ...not contracted or limited by victims' rights laws. Cf. In re Brown, 294 S.C. 235, 238, 363 S.E.2d 688, 690 (1988) (holding State v. Ridge, 269 S.C. 61, 236 S.E.2d 401 (1977), "does not impart jurisdiction on the trial court to hear members of the public, whether statutory `victims' or not, ......
  • Request a trial to view additional results
13 cases
  • State v. Needs, No. 24856.
    • United States
    • United States State Supreme Court of South Carolina
    • November 23, 1998
    ...a statute grants that power to the court. The prosecutor 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 In this case, the evidence showed that Ms. Smith had concealed informat......
  • State v. Williams, Opinion No. 5405
    • United States
    • Court of Appeals of South Carolina
    • May 25, 2016
    ...of such a statute, a court has no power ... to dismiss a criminal prosecution except at the instance 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 magist......
  • Manning v. Engelkes, No. 62521
    • United States
    • United States State Supreme Court of Iowa
    • June 27, 1979
    ...1293 (La.1978); Food Fair Stores, Inc. v. Jay, 283 Md. 205, 389 A.2d 874 (1978); State v. Hoopes, 534 S.W.2d 26 (Mo.1976); State v. Ridge, 269 S.C. 61, 236 S.E.2d 401 (1977); and State v. Dopp, 127 Vt. 573, 255 A.2d 190 In Iowa the common law rule has been altered by enactment of Iowa R.Cri......
  • Reed v. Becka, No. 2924.
    • United States
    • Court of Appeals of South Carolina
    • January 18, 1999
    ...not contracted or limited by victims' rights laws. Cf. In re Brown, 294 S.C. 235, 238, 363 S.E.2d 688, 690 (1988) (holding State v. Ridge, 269 S.C. 61, 236 S.E.2d 401 (1977), "does not impart jurisdiction on the trial court to hear members of the public, whether statutory `victims' or not, ......
  • Request a trial to view additional results

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