State v. Adkison , 264 S.C. 180 ( 1975 )

Littlejohn, Justice:

This case is here on appeal from the order of the judge of the Civil and Criminal Court of Horry County dated May 6, 1974. That court reversed the order of Magistrate Leon Cannon, wherein the magistrate denied a motion of the respondent for a new trial in a case of driving under the influence of intoxicants. The State has appealed.

It appears that the respondent was arrested on February 18, 1974, by a state highway patrolman for the violation of § 46-343 of the Code of Laws of South Carolina (1962). He posted bond in the amount of $100 and was given a copy of an official summons requiring him to appear before Magistrate Cannon one week later, at 9 o’clock in the morning on February 25, 1974. Upon his failure to appear, the magistrate tried and convicted him in his absence.

Thereafter the magistrate notified the South Carolina Highway Department, as required by law, of the disposition of the case, and the department notified respondent that his license was suspended because of the conviction. The respondent received this notice on or before March 26, 1974.

Soon thereafter he approached the magistrate in an effort to get the case reopened. Failing therein, he employed counsel, who on April 8, 1974, filed a formal motion before the magistrate to reopen the case based on an affidavit of respondent attached to the motion.

The magistrate based his order refusing the motion on a legal proposition, and we think he was eminently correct. In his order he held:

“By reason of Section 7-103, Code of Laws of South Carolina, 1962, as amended, I have no choice but to deny the motion for over ten (10) days has elapsed since I signed off the ticket. It is

"Ordered that the motion to reopen the case be and is hereby denied.”

Section 7-103, referred to in the magistrate’s order, reads in pertinent part as follows:

“Time for appeal and statement of grounds; . . . — The appellant shall within ten days after sentence, serve notice of appeal upon the magistrate who tried the case, stating the grounds upon which the appeal is founded.”

Section 43-142 reads as follows:

“New trials. — Any magistrate may grant a new trial in any case tried in his court for reasons for which new trials have usually been granted in the courts of law of this State. The granting of a new trial shall in no wise affect the right and duty of such magistrate to change the venue of a case as provided in 43-131.”

And § 43-143 reads in this manner:

“Time for motion for new trial; appeal. — No motion for a new trial shall be heard unless made within five days from the rendering of the judgment. And the right of appeal from the judgment shall exist for five days after the refusal of a motion for a new trial.”

Perhaps the magistrate inadvertently referred to § 7-103, which relates to appeals, when in actuality he was relying upon § 43-143, which relates to motions for new trial. In either event, his denial of the motion was correct. Even if we treat the respondent’s informal appearance before the magistrate, asking to reopen the case, as a motion for a new trial, such did not occur until more than a month after his conviction. The formal motion made by retained counsel, on April 8, 1974, was thirteen days after the respondent was notified of his conviction and license suspension by the highway department. It is obvious that neither respondent’s informal request, nor counsel’s formal motion was within the time permitted for either an appeal under § 7-103, or a motion for a new trial under § 43-143.

Respondent submits that his informal request to reopen the case should be treated as a motion for a new trial, and submits that the request was made within five days after he was notified of the conviction and license suspension. We are of the opinion that time for moving for a new trial commenced to run on the day of conviction. Brewer v. South Carolina Highway Dept., 261 S. C. 52, 198 S. E. (2d) 256 (1973), is of no comfort to the respondent and does not stand for the proposition, under the facts of this case, that time does not commence to run until after notification of the conviction and license suspension. In that case the defendant was charged with driving under the influence. He employed counsel, who demanded a jury trial. Instead of granting a jury trial the magistrate tried the case without notifying either the defendant or his lawyer, and found the defendant guilty. This Court held, and obviously correctly so under the facts, that the time for appealing did not commence to run until the defendant was notified of the conviction. The facts in Brewer and the facts in the case before us now are not at all similar, and counsel’s reliance upon that case is misplaced.

Section 46-855 provides that a highway patrolman may, in lieu of arresting an accused person, serve a summons and accept a sum of money as bail.¹ This section further provides: “The [forms] summons duly served as herein provided shall give the judicial officer jurisdiction to dispose of the matter.”

In this case the respondent was notified by summons to appear before Magistrate Cannon at 9 o’clock a. m. on February 25, 1974. He did not appear, and accordingly defaulted. The magistrate properly tried the matter and fully performed his duties relative thereto. There was no obligation on the part of the magistrate to seek the respondent and notify him of his conviction. This is the important distinction between the case at bar and Brewer. Respondent ignored the processes of the court. If he has not had his day in court, it is his own fault and he should not be heard to complain that he was not notified of his conviction, which he knew, or should have known, would be forthcoming.

The naked conclusion of the respondent in his affidavit submitted to the magistrate that he was misled by the patrolman and by the person who gave the breathalyzer test, apparently impressed the judge of the civil and criminal court, but not the magistrate. Such an averment, absent facts in support of the conclusion, is certainly no basis for granting relief in this case.

The order of the civil and criminal court is

Reversed.

Moss, C. J. and Ness, J., concur. Lewis and Bussey, JJ., dissent.

1 Section 28-140.1, 1974 Cum. Supp. to the Code, confers upon game wardens similar authority when fish or game laws are violated.