STATE v. McCLURE

Citation Codes

Equivalent Citations

citation codes

Docket Number

21662

Attorney(S)

Joseph H. Lumpkin, Jr., Columbia, for appellant. John P. Bowler, Columbia, for respondent.

See more information ...

Smart Summary

Factual and Procedural Background

In 1979, Donnie McClure began serving a thirty-year sentence at the South Carolina Department of Corrections. On March 27, 1980, while incarcerated at Kirkland Correctional Institution, he was served with an arrest warrant charging him with attempted escape. He was indicted by a grand jury in July 1980. Approximately one year after the arrest, on March 9, 1981, McClure was appointed an attorney who requested a preliminary hearing three days later. This request was denied as untimely. At trial on April 27, 1981, McClure's attorney filed motions to quash the indictment for denial of a speedy trial and access to counsel, and to be granted a preliminary hearing. The trial judge denied the motions related to speedy trial and counsel but dismissed the indictment on grounds that McClure had been denied a preliminary hearing, ordering a preliminary hearing to determine probable cause for the March 27 arrest and potential resubmission to the grand jury.

Legal Issues Presented

Whether the trial judge properly dismissed the indictment on the basis that the defendant was denied his right to a preliminary hearing.
Whether a preliminary hearing is constitutionally or statutorily required before a grand jury indictment.
Whether failure to timely request a preliminary hearing constitutes a waiver of that right and affects jurisdiction.

Arguments of the Parties

Respondent's (McClure) Arguments

McClure argued that he was denied his right to a preliminary hearing, which warranted dismissal of the indictment.

Appellant's (State) Arguments

The State contended that once an indictment is returned by the grand jury, there is no constitutional or statutory right to a preliminary hearing.
The State agreed to an evidentiary hearing but denied the right to a preliminary hearing post-indictment.
The State maintained that the preliminary hearing request was untimely and thus waived.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
State v. Irby, 166 S.C. 430, 164 S.E. 912 (1932)	Preliminary hearing is not required by State or Federal Constitution before grand jury indictment.	Supported the conclusion that a preliminary hearing is not constitutionally mandated prior to indictment.
State v. Nesmith, 213 S.C. 60, 48 S.E.2d 595 (1948)	Statutory provision allowing trial under indictment without preliminary hearing in some cases.	Confirmed that indictment obviates the need for a preliminary hearing under South Carolina law.
U.S. v. Werbrouck, 589 F. 273 (7th Cir. 1978), cert. denied 440 U.S. 962	Indictment constitutes a finding of probable cause, eliminating the need for a preliminary hearing.	Reinforced that indictment establishes probable cause, supporting dismissal of the preliminary hearing requirement.
State v. Porcher, 273 S.C. 507, 257 S.E.2d 505 (1979)	Proper request for preliminary hearing divests trial court of jurisdiction until hearing is held.	Clarified jurisdictional consequences of a timely preliminary hearing request.
State v. Funderburk, 259 S.C. 256, 191 S.E.2d 520 (1972)	Grand jury's jurisdiction is co-extensive with the court's criminal jurisdiction.	Supported the principle that grand jury cannot indict if court lacks jurisdiction.
State v. Wheeler, 259 S.C. 571, 193 S.E.2d 515 (1972)	Same as Funderburk regarding jurisdictional limits of grand jury indictments.	Reinforced jurisdictional requirements for indictment validity.
State v. Fortner, 266 S.C. 223, 222 S.E.2d 508 (1976)	Failure to properly request preliminary hearing means circuit court and grand jury retain jurisdiction even if hearing is granted post-indictment.	Applied to conclude that untimely request does not deprive court of jurisdiction.
O'Neil v. State, S.C., 285 S.E.2d 352 (1981)	Waiver of preliminary hearing right may occur through failure to request or comply with statutory requirements.	Supported the conclusion that McClure waived his right by untimely request.
Bonnette v. State, S.C., 282 S.E.2d 597 (1981)	Further clarified conditions constituting waiver of preliminary hearing rights.	Reinforced statutory waiver conditions applicable to McClure's case.

Court's Reasoning and Analysis

The court analyzed the statutory and constitutional framework governing preliminary hearings and grand jury indictments. It recognized that the right to a preliminary hearing is granted solely by state statute and is not constitutionally mandated. The indictment itself serves as a finding of probable cause, eliminating the necessity of a preliminary hearing before indictment. The court further examined the jurisdictional implications, noting that a timely request for a preliminary hearing deprives the trial court and grand jury of jurisdiction until the hearing is held. However, because McClure's request was untimely, he waived the right to a preliminary hearing, and jurisdiction properly vested in the Court of General Sessions upon indictment. Therefore, the trial judge erred in dismissing the indictment based on denial of a preliminary hearing. The court reversed and remanded the case for further proceedings consistent with these principles.

Holding and Implications

REVERSED AND REMANDED.

The court held that the trial judge erred in dismissing the indictment due to denial of a preliminary hearing because the defendant waived that right by failing to timely request it. The indictment itself established probable cause, and jurisdiction properly vested in the trial court upon indictment. The direct effect is that the indictment stands and the case proceeds to trial. No new legal precedent was established; the decision reaffirms existing statutory and case law regarding preliminary hearings and jurisdiction.

Show full summary ...

The STATE, Appellant, v. Donnie McCLURE, Respondent.

March 4, 1982.

LITTLEJOHN, Justice:

The issue herein is whether the trial judge properly dismissed an indictment against defendant Donnie McClure by finding that McClure had been denied his right to a preliminary hearing.

In 1979, McClure began serving a thirty-year sentence at the South Carolina Department of Corrections. On March 27, 1980, while incarcerated at the Kirkland Correctional Institution in Richland County, he was served with an arrest warrant charging him with attempting to escape. He was indicted by the grand jury in July, 1980.

All matters discussed herein relate to the March 27, 1980 arrest for attempted prison escape as distinguished from the prior unspecified offense for which McClure had already been convicted and incarcerated.

On March 9, 1981 (approximately one year after arrest), McClure was appointed an attorney. Three days later, on March 12, his attorney requested a preliminary hearing. The request was denied as not having been timely made.

When McClure's case for attempted escape was called for trial on April 27, 1981, his attorney filed two motions: (1) motion to quash the indictment for denial of both a speedy trial and of access to an attorney, and (2) motion to be granted a preliminary hearing. The Solicitor agreed to provide an "evidentiary hearing," but denied any right to a preliminary hearing once an indictment was returned by the grand jury.

The trial judge denied the first motion (speedy trial and access to an attorney) because of failure to show any prejudice. However, he then dismissed the indictment on the grounds that McClure had been denied a preliminary hearing; additionally, he directed that McClure be granted a preliminary hearing to determine whether there had been probable cause for his March 27 arrest to support resubmission of the case to the grand jury for a new indictment.

In a preliminary hearing, the State must show that there was "probable cause" to arrest the defendant for the commission of some crime. Absent this showing, the charge must be dismissed.

The defendant's right to request a preliminary hearing is provided solely by state statute. It is not required by either the State or Federal Constitution and is not necessary before a grand jury can indict a person for a crime. State v. Irby, 166 S.C. 430, 164 S.E. 912 (1932). South Carolina statutory law specifically provides that an accused may be brought to trial under indictment by a grand jury without a preliminary hearing in some cases. State v. Nesmith, 213 S.C. 60, 48 S.E.2d 595 (1948). The indictment itself constitutes a finding of probable cause and thus avoids the need for a preliminary hearing. U.S. v. Werbrouck, 589 F. 273 (7th Cir. 1978), cert. den. 440 U.S. 962, 99 S.Ct. 1507, 59 L.Ed. 2d 776.

Once the accused properly requests a preliminary hearing the magistrate's court retains jurisdiction and the Court of General Sessions is deprived of jurisdiction until such hearing is held. State v. Porcher, 273 S.C. 507, 257 S.E.2d 505 (1979). No indictment may be true billed by the grand jury when the circuit court lacks jurisdiction since the grand jury's jurisdiction is co-extensive with the criminal jurisdiction of the court in which it is impaneled and for which it is to make inquiry. State v. Funderburk, 259 S.C. 256, 191 S.E.2d 520 (1972); State v. Wheeler, 259 S.C. 571, 193 S.E.2d 515 (1972). But, where the request for preliminary hearing was not properly made in the first place, then the circuit court, and grand jury, is not deprived of jurisdiction even though a preliminary hearing is granted after indictment. State v. Fortner, 266 S.C. 223, 222 S.E.2d 508 (1976).

Under § 22-5-320, Code of Laws of South Carolina (1976, as amended 1978), the applicable statute herein, an accused who desires a preliminary hearing must make a written demand for such at least ten days before the convening of the next Court of General Sessions. Failure to comply with these conditions waives the right to the preliminary hearing. Waiver may occur in several ways:

This statute was further amended to reflect a change in the time period within which an accused may request a preliminary hearing and to make certain stylistic and grammatical changes, effective April 30, 1980.
Attention is also called to new § 17-23-160, entitled "Notice of right to preliminary hearing; form for request," effective April 30, 1980.
Since McClure had already waived his right to a preliminary hearing prior to April 30, 1980, neither the amendment nor the new statute apply to this case.

(1) failure to request a hearing;

(2) failure to comply with statutory requirements for the request;

(3) failure to appear, at least through an attorney, at the scheduled hearing; and

(4) plea negotiations and silence before the trial court regarding the desire for a preliminary hearing when entering a guilty plea.

O'Neil v. State, S.C. 285 S.E.2d 352 (1981); Bonnette v. State, S.C. 282 S.E.2d 597 (1981).

McClure concedes that a preliminary hearing was not timely requested. He thereby waived his right to such a hearing. Therefore, jurisdiction had vested in the Court of General Sessions when the grand jury true billed the indictment against him. Inasmuch as a preliminary hearing is not required prior to an indictment, and because the indictment itself establishes probable cause for the arrest, the trial judge erred in dismissing the indictment against McClure.

Accordingly, the case is reversed and remanded for further proceedings.

Reversed and remanded.

LEWIS, C.J., and NESS, GREGORY and HARWELL, JJ., concur.