A person arrested for a felony or misdemeanor in South Carolina is provided a form to request a preliminary hearing. Generally, the request is required to be submitted to the court within ten days. At a preliminary hearing, the state prosecutor is required to call at least one witness to establish probable cause exists to support the arrest. Hearsay is admitted, and the assistant solicitor (state prosecutor or assistant district attorney in South Carolina) will generally call only the lead investigator or officer who attested to the warrant to testify to the facts supporting the arrest and charge. The preliminary hearing is in the Magistrate Court, and is conducted pre-indictment. If the grand jury meets and returns an indictment on the case then the magistrate court loses jurisdiction and a preliminary hearing is no longer available.
The preliminary hearing is limited so that the defense is unable to call witnesses or present evidence. The defendant (person accused) is allowed to make an unsworn statement to the court, but that is rarely, if ever, done. Because of the limited nature of a preliminary hearing, many attorneys in Horry County and the Myrtle Beach area do not request a hearing or if a hearing has been requested they waive the hearing. It is difficult to win a preliminary hearing but not impossible. In some cases, if the case is dismissed at the Preliminary Hearing, the solicitor will indict the defendant, by submitting an indictment to the grand jury which has the legal effect of reinstating the original charges which were dismissed. Also, for practical purposes, more serious charges, such as aggravated rape, murder, felony DUI or drug trafficking, are unlikely to be dismissed by the Magistate Judge conducting the hearing. The legal standard does not change, but the likelihood of a dismissal is greater on a less serious offense.
Generally, at the Law Office of M. Gregory McCollum,P.A., we request a preliminary hearing if our office is retained shortly after the arrest and prior to the ten day deadline. If our office is contacted in time, we will usually submit the request to the Court to preserve the right prior to being retained. I usually advise my clients that nothing bad can happen at a preliminary hearing and sometimes it is beneficial and sometimes charges are dismissed or reduced.
Following are examples of cases where our clients have had charges dismissed or reduced as a result of the court conducting a hearing. Cases which are bound over for prosecution are not included, and most cases are not dismissed at the preliminary hearing. We take the position that if a dismissal could result then we will most likely fully contest the case and demand a preliminary hearing. Additionally, on some cases that are not dismissed or remanded as a lesser charge, the cross examination of the investigating officer exposes weaknesses or “holes in the” case which must be considered by the Solicitor in evaluating how strong the evidence is and whether the case should eventually dismissed or whether the charges should be reduced in a plea offer.
What will happen on your case, depends upon many factors. Having an experienced
and qualified criminal defense lawyer is one of those factors. Every case is
unique and different defenses are available on different cases. If you are
interested in a consultation, please contact the Law Office of Greg McCollum for
Following are some examples of cases that Attorney Greg McCollum has handled.
These are provided to give you information which may be helpful. Often, people
think that because they were arrested and charged with a criminal offense that
there is nothing they can do about it, and that the situation is hopeless or
futile. It is important to know that an arrest and charge is only an accusation,
and that a person is not automatically deemed to be guilty. In some cases the
person is innocent, in other cases the state lacks sufficient evidence to
convict, and sometimes the person has been charged with a greater offense than
the state can prove, which can result in charges being reduced or dismissed
completely. What can or will occur on your case can not be predicted with
absolute certainty. The practice of law is not a science dependent on absolute
rules. Law must be interpreted and applied to a particular set of facts, which
may or not be proven. What will happen to your case depends upon several factors
and each case is unique.
When reading results from past cases it is important to know that any result
Attorney Greg McCollum may achieve on behalf of one client does not necessarily
indicate similar results can be obtained for other clients.
Preliminary Hearing Results
State vs. S. H. 2009
Assault and Battery of a High and Aggravate Nature (ABHAN)*
Penalty Up to Ten Years Parole Eligible
*Note. This offense was changed. It was an unclassified misdemeanor. It is now a different offense yet called the same thing which is somewhat confusing. The offense was changed in June 2010.
This client was charged with the crime of Assault and Battery of a High and Aggravated Nature which at the time was a common law crime which carried a possible penalty of up to ten years in prison. The police alleged that our client struck another person in the head with a beer bottle at a Myrtle Beach night club. After hearing the testimony and defense cross examination of the investigating officer, and after considering the evidence produced, the Judge reduced the Assault and Battery of a High and Aggravate Nature (ABHAN) to Simple Assault and Battery, an offense, which at the time carried a maximum penalty of up to thirty days in jail and within the jurisdiction of the Myrtle Beach Municipal Court. The charge was remanded to the municipal court where it was later DISMISSED.
State vs. K. G. 2007
Employing Child for Sexual Performance
Felony - Maximum Penalty Twenty Years - No Parole Offense
Sex Offender Registration
This person was arrested and charged with the offense of Employing, Authorizing, or Inducing a Child Under the Age of Eighteen Years of Age to Engage in a Sexual Performance, which is a felony and carries up to twenty years in prison without possibility of parole. A conviction also requires the person to register as a Sex Offender. The state presented evidence alleging the client, allowed his thirteen year son to have sexual intercourse with an eighteen year old woman, and contracted gonorrhea as a result. After hearing all of the testimony presented by the state, the Court granted the Defense motion to dismiss because, even considering the evidence in the light most favorable to the state, the state failed to show probable cause existed for each element of the offense. The felony charge was DISMISSED
State vs. K. B. 2007
Habitual Offender Traffic Offender Driving Under Suspension
Felony Maximum Penalty Five Years
After hearing all the evidence presented by the state and arguments presented by the defense, the Court ruled that the state failed to prove the required predicate offenses existed on the Client’s driving record and the charge was DISMISSED
State vs. P. T. 2007
Contributing to the Delinquency of a Minor
Misdemeanor Maximum Penalty Three Years
The court dismissed the case because the police officer who made the case did not appear at a second preliminary hearing after the Court scheduled a second hearing when the officer did not appear at the originally scheduled hearing. The charge was reinstated by the solicitor and later DISMISSED.
State vs. J. M. 2005
Burglary in the 2nd Degree
Felony Maximum Penalty Fifteen Years
The client was charged with the offense of Burglary, Second Degree. At the preliminary hearing the Defense entered into an agreement for the Burglary to be dismissed and the case was remanded to Magistrate Court as a Trespassing which is a summary court offense with a maximum penalty of thirty days in jail or a fine. The order allowed the Client to plead Not Guilty and preserve his right to a jury trial in the Magistrate Court. The charge of Burglary, Second Degree was DISMISSED.
State vs. S. F.
Assault with Intent to Kill
Felony Maximum Penalty Twenty Years without Parole
The client was charged with the offense of Assault with Intent to Kill on a case where a private citizen attested to the facts in an affidavit causing the judge to issue the warrant, where the police did not seek a warrant pursuant to their investigation No evidence was presented at the hearing and the case was DISMISSED.