THE STATE OF SOUTH CAROLINA
In The Court of Appeals

The State,        Appellant,

v.

James Arthur Banks, II,        Respondent.

Appeal From Calhoun County
Diane Schafer Goodstein, Circuit Court Judge

Unpublished Opinion No. 2003-UP-732
Submitted October 15, 2003 � Filed December 16, 2003

REVERSED AND REMANDED

C. Cliff Rollins, of Blythewood, for Appellant.

Martin Rast Banks, of St. Matthews, for Respondent.

PER CURIAM:� This is an appeal by the State from an order of the circuit court affirming a magistrate�s dismissal of the State�s charges against respondent, James Arthur Banks, II.� We reverse and remand.

FACTUAL/PROCEDURAL BACKGROUND

On January 17, 2002, Banks was pulled over by Trooper Smith and was subsequently charged with driving under the influence, driving without a seatbelt and driving without a driver�s license.� Respondent made a motion to dismiss the charges for lack of probable cause of the officer to make a stop.� A pretrial hearing was scheduled for February 19, 2002.� At that time, the State was granted a continuance.� On March 14, 2002, the State sought an additional continuance, which was granted over Banks� objection.� On April 5, 2002, the State again sought a continuance, which was provisionally granted upon the State�s appearance on April 8, 2002.� It appears from the record that Trooper Smith either appeared in person or spoke on the phone with the magistrate, and requested a continuance based on the unavailability of a Sgt. Webb.� The magistrate, for unstated reasons, was �supposed to be hearing from Sgt. Webb� when Trooper Smith made his third appearance.� Sgt. Webb at some point called the magistrate�s office seeking a continuance, but the magistrate was not available to speak with him.� Apparently, Sgt. Webb was unavailable to appear on behalf of the State inasmuch as he was in Texas due to a death in his family. [1] � The magistrate indicated he told Trooper Smith, �don�t come to court,� because he wanted to assure the trooper he need not appear in court at a time when he was to be off duty since it was Sgt. Webb�s testimony that the magistrate �needed to hear.�� When Sgt. Webb failed to appear on April 8, the magistrate dismissed the charges against Banks.� The magistrate found the State had been granted continuances on February 19 and March 14, and a provisional continuance on April 5, but the State failed to appear on the scheduled date of April 8.� Therefore, the magistrate granted Banks� motion to dismiss.�

The State appealed to the court of common pleas, arguing (1) the magistrate�s order dismissing the charges was ordered without the participation of or notice to the prosecution, and was therefore an ex parte order, and (2) even if there was proper notice to the prosecution, the magistrate had no authority to dismiss criminal charges before the swearing of a jury or the taking of testimony, without the participation or consent of the prosecution.�

The circuit court, by form order, remanded the matter to the magistrate for clarification of the underlying basis for the court�s decision to dismiss the two charges. [2] � Thereafter, the magistrate issued his clarification stating, while he recognized the mere absence of a prosecuting officer in a traffic case was not, alone, grounds for dismissal, that the State in this case had �engage[d] in a long train of abuses� such that the court was left with no other choice than to dismiss the case.� After considering argument of counsel and the magistrate�s return as well as his clarification, the circuit court judge concluded the magistrate�s dismissal should be affirmed on the basis that the State failed to appear.�

LAW/ANALYSIS

The State appeals arguing the magistrate erred in dismissing the case under the present circumstances.� Specifically, the State argues that the prosecutor has the sole discretion to dismiss or nol prosse a criminal charge prior to trial and, absent an authorizing statute, a court has no power to dismiss a criminal prosecution. [3] � We agree.

�In criminal appeals from magistrate or municipal court, the circuit court does not conduct a de novo review, but instead reviews for preserved error raised to it by appropriate exception.� In reviewing criminal cases, this court may review errors of law only.�� State v. Henderson, 347 S.C. 455, 457, 556 S.E.2d 691, 692 (Ct. App. 2001) (citations omitted).

In Ex Parte State, 263 S.C. 363, 210 S.E.2d 600 (1974), our Supreme Court held the failure of the State to proceed with the prosecution of a juvenile at the scheduled time did not warrant dismissal of the case by the judge.� In that case, the prosecutor learned the day before the scheduled hearing that an essential witness would be unavailable, and informed defense counsel and the judge the prosecution elected not to call the case as scheduled.� Counsel appeared on the scheduled date and moved to dismiss the case since no one was present to prosecute.� While the motion was initially denied by one judge, counsel subsequently renewed the motion before another judge, which was granted.� In reversing the dismissal, our Supreme Court noted an Illinois case wherein a trial court dismissed misdemeanor charges for want of prosecution.� On appeal, the Illinois court held that in a criminal case, the trial court did not have authority to dismiss a case on the ground that the State had failed to appear.� The court further noted one of the bases for the Illinois court�s ruling was the fact that the State represents the people and that considerations of public safety and welfare are involved.������

In State v. Ridge, 269 S.C. 61, 236 S.E.2d 401 (1977), our Supreme Court again encountered a situation where the lower court dismissed charges for lack of prosecution.� There, a trial was scheduled on two indictments charging Ridge with the possession and sale of drugs.� It was postponed twice by the solicitor�s office, once by Ridge, and once by agreement of the parties.� It was subsequently set to be tried and the solicitor appeared, but before the jury was drawn and the trial started, the solicitor told counsel he would not try the case because one of the State�s important witnesses was on vacation.� Counsel moved to dismiss for lack of prosecution and the judge ordered the solicitor to try the case or dismiss it.� When the solicitor offered to nol prosse one of the indictments, the judge rejected the offer and dismissed both cases with prejudice.� Our Supreme Court reversed the dismissal of both indictments.� As to the first, the court noted the solicitor had the authority to call cases in such order and manner as would facilitate the efficient administration of his official duties, and, in this State, the decision of whether to nol prosse at any time before the jury is impaneled and sworn is within the discretion of the solicitor.� As to the second indictment the court quoted with approval the following from Ex Parte State :

�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. . . .�

269 S.C. at 65, 236 S.E.2d at 402.���

In consideration of the above, we hold the magistrate did not have the authority to dismiss the charges against Banks based on the State�s failure to prosecute.� Accordingly, this case is

REVERSED AND REMANDED.

HUFF, STILWELL, and BEATTY, JJ., concur.