March 27, 1980
|RE:||Remand of Cases to Magistrates by Solicitors
|FROM:||L. Edmund Atwater, III, Staff Attorney|
It has come to our attention that there have been several instances in which the solicitor has remanded a case to the magistrates with instructions that a preliminary hearing be held, often with directions to dismiss the case after such hearing. All parties involved are advised that this practice is improper. The right to request a preliminary hearing rests solely with the defendant. (S.C. Code Ann. § 22-5-320).
It is both the duty and responsibility of the magistrate to determine every preliminary hearing on its merits. In a situation where a solicitor remands for a preliminary hearing with instructions to the magistrate to dismiss the case, the magistrate should refuse to hold the preliminary hearing and return the case to the solicitor without action. The use of the preliminary hearing for the purposes above indicated will subject the magistrate and other appropriate parties to disciplinary action for misuse of the judicial process.