June 21, 1982


TO: All Clerks of Court
RE: Procedures Under Rule 3 S.C. Rules of Criminal Procedure (SCRCrimP)

Ladies and Gentlemen:

During the past five months, representatives of this office have been auditing compliance with Rule 3 SCRCrimP governing the transmittal of arrest warrants and the taking of action on those arrest warrants by the Office of the Solicitor. In most courts, the audit was in the form of a random sampling of warrants and in others a full audit of the criminal records was made. In the vast majority of situations, the court was in compliance with Rule 3. Steps are now being taken to insure that those counties not in compliance are brought into compliance.

The audits did, however, reveal that the proper procedures were not being followed in some instances. To clarify any misunderstanding of procedures, we felt it would be helpful to point out the problems which were encountered and the procedures which should be followed.

All magistrates and municipal judges have been instructed to prepare a certificate of transmittal, form SCCA-M3, to accompany all uniform numbered arrest warrants forwarded to the Office of the Clerk of Court. No uniform numbered arrest warrants issued by a magisterial or municipal court should be accepted by the clerk of court unless accompanied by the proper certificate of transmittal. When a uniform numbered arrest warrant issued by the magisterial or municipal court is presented to the clerk without the necessary certificate of transmittal, it should be immediately returned to the issuing court and not accepted for filing. In order that we may correct the problem we would appreciate being notified by the clerk when this situation arises. This procedure does not apply to other agencies which are authorized to issue warrants such as the Wildlife Department, Coroners and Probation Officers.

When the indictment which has been prepared but not yet presented to the grand jury in compliance with Rule 3 is presented to the clerk of court for the assignment of the criminal case number, the prepared, but unpresented indictment should be taken for filing by the clerk of court at that time. The solicitor may retain a copy or request the clerk of court to provide him with a copy of that prefiled indictment. The original should at all times remain in the possession of the clerk of court. Until the prepared, but unpresented indictment is filed with the clerk of court, compliance with Rule 3 has not been met. Once the case number has been assigned to an unpresented original indictment or a presented original indictment, the original is to remain with the clerk of court at all times except when needed by the grand jury or the court, as the case may be. Under circuit court rules and S.C. Code Ann. § 14-17-570, the clerk is responsible for the possession of the original document and should not allow it to be removed from his possession except in the aforementioned presented indictment has been filed, all papers pertaining to the case should be filed in the same case file.

Placement of a case represented by the warrant in pretrial intervention or other diversion program does not have the effect of tolling Rule 3 unless the requirement of Rule C(3) is met. A written statement must be filed with the clerk of court that the case has been placed in pretrial intervention or other diversion status. This is also true should the solicitor determine that a nol-pros or other dispositive action on the warrant is appropriate and taken by the solicitor. That action must be in writing and filed with the clerk of court.

Rule 2 SCRCrimP requires that preliminary hearings must be requested within ten (10) days of the bond hearing or first appearance (for non-bailable offenses), and held within ten (10) days of the request. Magistrates and municipal judges are required to notify the clerk of court and solicitor when a preliminary hearing is requested by use of the "Notice to Clerk of Court and Solicitor of Judicial Circuit," form SCCA-M2. The form must show the specific place, time and date that the preliminary hearing is scheduled. Should the preliminary hearing be continued, the clerk and the solicitor should be notified. A notice form comes in to the clerk and solicitor with the statement that the preliminary hearing is to be scheduled as a future date or is left blank should be returned to the magistrate or municipal judge and this office notified.

When a warrant is received by the clerk of court from the magistrate or municipal court for filing and the Return showing that the warrant has, in fact, been served on the defendant is incomplete, the warrant should be returned to the issuing court and the original warrant not accepted until such Return evidencing that the warrant was properly served is complete.

Non-compliance with one or more of the foregoing procedures was encountered in only isolated areas. This letter is intended to clarify the procedures for those areas and restate them for all parties concerned. By copy of this letter, we are notifying all magistrates, municipal judges, solicitors and public defenders, as well as the circuit judges, as to the procedures. Should you have any questions, please contact this office.



L. Edmund Atwater, III