Was a South Carolina defendant still entitled to a preliminary hearing after a grand jury indictment?

Plain-English summary

In 1999, a magistrate asked whether a defendant remained entitled to a preliminary hearing after a grand jury indicted the defendant before the hearing occurred. The Attorney General's office answered through Rule 2 of the South Carolina Rules of Criminal Procedure: even if a defendant requested a hearing, it was not to be held after an intervening indictment or waiver of indictment.

The letter cited State v. Hawkins, a South Carolina Court of Appeals decision that referenced the same rule. It also noted Rule 2(e)'s statement that delay in holding a preliminary hearing did not delay prosecution in general sessions court. The letter was informal.

Currency note

This opinion was issued in 1999. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Could a defendant demand a preliminary hearing after indictment? A: The opinion said the hearing would not be held if the grand jury indicted the defendant before the hearing date.

What if the hearing had already been requested? A: Rule 2, as quoted in the opinion, set a hearing timeline after a request but expressly stopped the hearing if indictment came first.

Would a delayed preliminary hearing pause prosecution? A: The office cited Rule 2(e), which said delay in holding the hearing was not a ground to delay prosecution in general sessions court.

Background and statutory framework

The magistrate's question concerned the sequence of a request, an indictment, and a hearing. The opinion quoted Rule 2(b), then cited State v. Hawkins and Rule 2(e). It did not discuss the merits of the charge or any other hearing rights.

Citations and references

Rule: South Carolina Rules of Criminal Procedure, Rule 2(b) and (e).

Case: State v. Hawkins, 310 S.C. 50, 425 S.E.2d 50 (Ct. App. 1992).

Official title

Questioning whether a defendant is entitled to a preliminary hearing where he was indicted before the hearing could be held.

Requester

The Honorable Joseph McDomick, Magistrate, St. Helena Island

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/august-10-1999-1/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/11/99aug-10-mcdomick.pdf

Original opinion text

/

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
CH A RLIE CONDON
ATIO RNEY GENERAL

August 10, 1999

I
The Honorable Joseph McDomick
Magistrate, St. Helena Island
Post Off ice Box 126
St. Helena Island, South Carolina

29920

Dear Magistrate McDomick:
In a letter to this office, you questioned whether a defendant is entitled to a preliminary hearing where he was indicted before the hearing could be held. Rule 2 of the State Rules of Criminal Procedure provides: (b) Time for Hearing. If the defendant requests a preliminary hearing, the hearing shall be held within . ten days following the request. The hearing shall not be held, however, if the defendant is indicted bv a grand jury or waives indictment before the preliminary hearing is h~ld. The defendant may appear by counsel or in person or both. The State Court of Appeals in State v. Hawkins, 310 S.C. 50, 425 S . E . 2d 50 (Ct. App. 1992) referenced Rule 2 and its statement that a preliminary hearing is not to be held where the defendant has been indicted before the hearing can be held. The Court also referenced Rule 2(e) and its statement that any delay in holding a preliminary hearing is not a ground for delay of the prosecution of the case in general sessions court .
·
This letter is an informal opinion only. It has been written by a designated Senior Assistant Attorney General and represents the position of the undersigned attorney as to the specific questions asked. It has not, however, been personally scrutinized

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Page 2
August 10, 1999

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With kind regards, I am,
Very truly yours,

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