State v. Ridge
| Decision Date | 22 June 1977 |
| Docket Number | No. 20455,20455 |
| Citation | 236 S.E.2d 401,269 S.C. 61 |
| Court | South Carolina Supreme Court |
| Parties | The STATE, Appellant, v. John RIDGE, Respondent. |
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.
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.
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.
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).
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):
We adhere to this statement and apply it to the present case.
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 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 charged on January 29, 1975.
The matter was scheduled for trial and postponed on four occasions. It was originally scheduled for the week of December 15, 1975, but was postponed by the solicitor's office. It was next set for February 17, 1976, by the solicitor but was continued at the request of the respondent's counsel, who was trying another case at the time. The case was next set for the May 1976 term of court. However, it was continued at the mutual convenience of both the solicitor's office and the respondent. On July 14, 1976, the case was again scheduled for trial but was continued by the solicitor after the respondent's subpoenaed witnesses had appeared for trial. Following discussions with the solicitor's office, counsel for the respondent was assured that the matter would be rescheduled for July 26, 1976. The respondent's counsel advised the solicitor's office by letter that, due to the many previous postponements and continuances, he was anxious to have the matter disposed of as scheduled, since it was the last week of the General Sessions term.
On July 26, 1976, the respondent, his counsel, and the respondent's subpoenaed witnesses, several of whom were from Anderson County, appeared in court for the trial. At that time, an assistant solicitor appeared before the trial judge and stated that the case would not be tried because a crucial State's witness (the drug custodian of the Richland County Sheriff's Department) was absent on vacation. At that point, counsel for the respondent, noting a previous motion for consolidation of the two indictments (which motion the trial judge had granted), moved that both indictments be dismissed for lack of prosecution. During the course of the ensuing argument, the assistant solicitor noted that only one indictment, the one of October 20, 1975, had been scheduled for trial, and he sought to enter a nolle prosequi as to that one. The trial judge, however, advised the assistant solicitor either to try the matter or to have it dismissed. The State did not proceed, contending that it could not go forward at that time. The trial judge refused to permit a nolle prosequi as to either indictment and dismissed both with prejudice. The State (appellant) timely filed Notice of Intention to Appeal, and the matter is now before this Court.
In my view, the trial judge's dismissal of the indictments was proper as a means of safeguarding the respondent's right to a speedy trial. This right is guaranteed by Article I, § 14 of the South Carolina Constitution, as amended, and the Sixth and Fourteenth Amendments to the Constitution of the United States.
The court has the authority to dismiss a prosecution where the defendant would otherwise be denied his constitutional right to a speedy trial. See 21 Am.Jur.2d, Criminal Law, § 255. Every person accused of a crime is entitled to a speedy trial under the constitutional provisions above cited. See Klopfer v. State of North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967). While a speedy trial does not mean an immediate one, it does mean a trial without unreasonable and unnecessary delay. Wheeler v. State, 247 S.C. 393, 147 S.E.2d 627 (1966). The facts of the instant case show that the proposed fifth delay (on July 26) was unreasonable and unnecessary.
As we stated in State v. Monroe, 262 S.C. 346, 204 S.E.2d 433 (1974...
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