May 24, 2010
Disqualification Order Not Appealable
The South Carolina Supreme Court held that the State may not directly appeal an order disqualifying an assistant solicitor. The facts:
The defendant in this case...was charged with the murder of his ex-wife...as well as one count each of first-degree burglary and possession of a firearm during the commission of a violent crime and three counts of assault with intent to kill.
An assistant solicitor in Clarendon County was assigned to prosecute the case. Defense counsel...moved to disqualify the individual assistant solicitor based on the fact that the husband of the assistant solicitor had represented Wilson in his divorce from the murder victim just sixteen months before the alleged murder, and the brother-in-law of the assistant solicitor had represented Wilson at his bond hearing on the criminal charges.
The circuit court granted the motion for disqualification. The State appeals from this pretrial order, arguing the circuit court applied an incorrect legal standard in granting the motion for disqualification.
The court concluded:
We hold the policy implications present in Hagood, i.e., the right of a party to retain counsel of his or her choosing and the development of an attorney/client relationship, are not compelling factors when considering the disqualification of an assistant solicitor. The reasons the Court articulated in Hagood as justification for allowing the direct appeal are not present here, as the State has no substantial right that has been invaded, and the State's ability to appeal has historically been limited in criminal matters.
The appeals in which this Court has considered the issue of disqualification of either one solicitor or an entire solicitor's office have been appeals arising after the defendant's conviction, as they are in the posture of the defendant raising the issue as a ground for reversal. This is consistent with the general rule that a defendant may not appeal until after he is convicted and sentenced. We see no justification for extending different treatment to the State so as to allow direct appeal of this pretrial order. (citations omitted)
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