dissenting.
I respectfully dissent from that part of the opinion that finds S.C.Code Ann. § 1-7-330 (2005) unconstitutional.
As explained below, the constitutionality of the statute is not before us. It is axiomatic that this Court will not address a constitutional issue unless it is necessary to a resolution of the case. E.g., S.C. Dep’t of Soc. Servs. v. Cochran, 356 S.C. 413, 589 S.E.2d 753 (2003). It is also axiomatic that we sit to review the lower court’s order based upon the issues properly presented by the parties for our consideration. E.g., Herron v. Century BMW, 395 S.C. 461, 719 S.E.2d 640 (2011). Constitutional issues are not exempt from issue preservation requirements. Id. Further, our rule restricts amicus to the issues presented by the parties, Rule 213, SCACR: to strike down a statute as unconstitutional based upon an amicus brief is tantamount to a s%ia sponte declaration. Unless a statute infringes upon our jurisdiction, we may not sua sponte declare it unconstitutional. See State v. Keenan, 278 S.C. 361, 296 *447S.E.2d 676 (1982). We should not decide the constitutionality of § 1-7-380 on this record.
Even if the constitutionality of § 1-7-330 were before us, under our existing precedents I find that the statute does not offend the separation of powers doctrine. I agree that solicitors are executive officers. S.C.Code Ann. § 1-1-110 (2005). Further, I agree that § 1-7-330 vests the exclusive authority to prepare the general sessions docket in the solicitor, and also authorizes her to determine the order in which the docketed cases are called. Finally, I do not disagree with the majority that by vesting exclusive authority in the solicitor to prepare the general sessions docket, and by permitting the solicitor to call cases from that docket in his desired order, § 1-7-330 could lead to unnecessary delay, oppressive haste, and other abuses. As I interpret the statute, however, I do not believe that it violates the South Carolina Constitution.
We have recently addressed a separation of powers challenge to prosecutorial authority:
Under the separation of powers doctrine, which is the basis for our form of government, the Executive Branch is vested with the power to decide when and how to prosecute a case. Both the South Carolina Constitution [footnote 5 citing S.C. Const, art. V, § 24] and South Carolina case law [footnote 6 citing McLeod v. Snipes, 266 S.C. 415, 223 S.E.2d 853 (1976) ] place the unfettered discretion to prosecute solely in the prosecutor’s hands. The Attorney General as the State’s chief prosecutor may decide when and where to present an indictment, and may even decide whether an indictment should be sought. Prosecutors may pursue a case to trial, or they may plea bargain it down to a lesser offense, or they can simply decide not to prosecute the offense in its entirety. The Judicial Branch is not empowered to infringe on the exercise of this prosecutorial discretion ....
State v. Thrift, 312 S.C. 282, 291-292, 440 S.E.2d 341, 346-347 (1994) cited with approval in State v. Needs, 333 S.C. 134, 146, 508 S.E.2d 857, 863 (1998); State v. Burdette, 335 S.C. 34, 40, 515 S.E.2d 525, 528 (1999).
Further, “[a]ll the authorities agree that, in the exercise of a discretionary official act, an executive officer cannot be re*448strained, coerced, or controlled by the judicial department.” State v. Ansel, 76 S.C. 395, 57 S.E. 185 (1907).
Subject to the limitations discussed below, the solicitor has the discretion to decide when to prosecute and how to prosecute a case. This does not mean that the solicitor’s authority is unrestrained by judicial oversight. The trial judge has the ultimate authority to determine whether a case called by the solicitor will be tried at a particular juncture. See State v. Mikell, 257 S.C. 315, 185 S.E.2d 814 (1971) (“In the calling of cases for trial the solicitor has a broad discretion in the first instance, and the trail [sic] judge has a broad discretion in the final analysis.”). This is so because the trial judge has “the inherent power to control the order of [the court’s] business to safeguard the rights of litigants” through her discretion to grant a continuance. Williams v. Bordon’s Inc., 274 S.C. 275, 262 S.E.2d 881 (1980). In Williams, the Court held the General Assembly violated the separation of powers doctrine by enacting a statute which purported to limit the court’s discretion to grant a continuance in any case which involved an attorney-legislator as “attorney of record, witness, or otherwise.” If we read § 1-7-330 as preventing a trial judge from exercising her discretion to require a solicitor to place a case upon a future docket if necessary to safeguard the rights of the defendant, then we would render the statute unconstitutional. Such an interpretation would create a separation of powers issue, not between the executive and the judiciary, but between the legislative branch and the judicial branch since we would find the statute unconstitutionally infringes upon judicial authority. Williams, supra. Nothing in § 1-7-330 affects the court’s inherent authority to safeguard litigants’ rights; rather, the statute represents the reasonable delegation of preparing the general sessions docket to the solicitor.
The solicitor is a party to every general sessions proceeding, and has the information and resources necessary to determine when a case is ready to be called. If the solicitor is perceived to be unlawfully delaying the call of a case, the defendant has available the remedy of a speedy trial motion: If it is called with undue haste, the defendant may seek a continuance. It is only logical to have the solicitor initially set the docket since he knows the status of the law enforcement investigation, of the examination of the forensic evidence, of any codefendant’s *449case, and of the defendant’s other charges. See State v. Mikell, supra (“A prosecuting attorney normally has many cases for disposition. He must plan ahead to expedite the work of the court....”). The solicitor bears the burden of proof in every case and should not ordinarily be compelled to call his case before he is ready. Id. (“solicitor has authority to call cases in such order and in such manner as will facilitate the efficient administration of his official duties, subject to the broad discretion of the trial judge.”)(emphasis supplied). In my opinion, there is no separation of powers problem with § 1-7-330. E.g., State v. Thrift, supra.
Finally, I disagree with the premise of the majority’s opinion, “that section 1-7-330 is at odds with [the courts’] intrinsically judicial power.” Even if one were to grant that the statute creates some overlap of executive and judicial authority, it cannot be said that preparing a docket and calling cases from that docket usurps the judicial power vested in the unified judicial system under S.C. Const, art. V, § 1 (1977). See Carolina Glass Co. v. Murray, 87 S.C. 270, 291-292, 69 S.E. 391, 399 (1910) overruled in part on other grounds McCall v. Batson, 285 S.C. 243, 329 S.E.2d 741 (1985).
In my opinion, however, we cannot reach the constitutionality of that statute in this case. Were we to reach the issue, I would interpret the statute in a way that does not offend the separation of powers doctrine. If the Court is nonetheless determined to declare § 1-7-330 unconstitutional, then we must both deal with our precedents and describe the new system in sufficient detail that the parties most intimately involved in the process can implement the necessary changes.
I concur in the majority’s decision to affirm this appeal and in the sentiment that our General Sessions docketing system needs reform, but dissent from so much of that opinion as reaches and decides the constitutionality of § 1-7-330.
RE: DISPOSITION OF CASES IN GENERAL SESSIONS
ORDER
Pursuant to the provisions of S.C. CONST. Art. V § 4, and in furtherance of this Court’s decision in State v. Langford, *450IT IS ORDERED that:
Cases in General Sessions Court shall proceed as follows:
(A) All cases shall be assigned to a 180 day track consistent with the Uniform Differentiated Case Management Order which is incorporated herein and made a part hereof by reference. The Chief Judge for Administrative Purposes (CJAP) may entertain motions to remove any case from the track and establish a scheduling order where appropriate.
(B) Cases within the 180 day track or cases that have exceeded the 180 day track by less than one (1) year, shall remain under the control of the Solicitor, subject to the provisions set forth below:
(1) General Docket. The General Docket consists of all pending General Sessions matters. Absent the grant of a speedy trial motion, the Solicitor shall have the initial responsibility for designating when a case is ready for trial. Upon determining that a case is ready for trial, the Solicitor shall file with the Clerk of Court a “NOTICE OF COURT DOCKETING” on a form prescribed by the Supreme Court and shall serve all parties and counsel of record. Upon receiving such notice, the Clerk shall place the case on the Court Docket and the matter may be called for trial any time after thirty (30) days from the filing of the NOTICE OF COURT DOCKETING. The Court Docket consists of all matters that the Solicitor has deemed ready for trial. Once the case is placed on the Court Docket, the Court assumes the responsibility for setting a trial date and the Clerk, under the direction and supervision of the CJAP, shall publish a trial roster from the Court Docket of cases subject for trial at least twenty-one (21) days before each term of court. Publication shall be effected once the Clerk makes the trial roster available in the Clerk’s office or on the Clerk’s internet site. The Clerk shall also distribute the trial roster to those attorneys listed upon it by Fax, U.S. Mail, hand delivery, or electronic delivery. Cases on the trial roster not reached for trial will be subject to being called for the next two terms of court before being republished. It is the responsibility of each defense attorney to notify the *451defendant that the case is scheduled for trial and to remind the defendant of the right and obligation to be present at trial. Motions for continuance or other relief from a published trial roster shall be made in accordance with Rule 7, SCRCrimP. The CJAP or presiding judge shall rule on the motion.
(2) Nothing herein shall affect the Court’s ability to schedule motions or other pretrial proceedings as may be appropriate, or the right of the CJAP to add cases to any trial roster or designate cases for a day certain as the CJAP deems appropriate, subject to the notification requirements set forth in paragraph B(l), above.
(C) Cases more than one year beyond their 180 day track will be automatically transferred to the CJAP’s supervision as follows:
(1) Judicial Docket. If the Solicitor has not filed a NOTICE OF COURT DOCKETING in accordance with Paragraph (B)(1) above for any case more than one (1) year beyond its assigned track, it will be automatically transferred to the Judicial Docket, which the Clerk shall maintain separate and apart from the regular Court Docket. The CJAP will administer and supervise the Judicial Docket. The Solicitor must notify the Clerk within fifteen (15) days after expiration of this period of time of all cases that are in this category and furnish the following information: (1) Indictment number; (2) Defendant’s name; (3) Date of Arrest; (4) Assigned Assistant Solicitor; (5) Defense Counsel; (6) Date of Indictment (True Bill); (7) Track expiration date; (8) Prior request(s) for continuance. The Clerk will maintain the Judicial Docket which will include this information.
(2) Upon placement on the Judicial Docket, the CJAP shall arrange for the scheduling of trial or other disposition of the case. Additionally, the CJAP may upon the request of any party transfer the case to the trial roster in accordance with Paragraphs (B)(1) and (2).
*452(3) If the case has not been disposed of more than one (1) year following its transfer to the Judicial Docket, the CJAP will dismiss the case, absent the Solicitor establishing good cause. Both the Solicitor and the defendant shall be notified of the pending dismissal and be given an opportunity to be heard. Cases dismissed pursuant to this provision will be without prejudice, unless otherwise specified by the CJAP. The Solicitor will notify the victim(s) of cases dismissed pursuant to this provision.
(D) Non-Track Cases:
The Solicitor shall furnish to the CJAP a quarterly status report of all non-track cases. The report shall contain information regarding the progress of the case and the expected disposition date.
(E) Old Case Disposition:
Any case, including non-track cases, pending four (4) or more years from the date of indictment by the Grand Jury shall be dismissed by the CJAP, unless the Solicitor shall show good cause why it should not be dismissed. Such dismissal is without prejudice, unless otherwise specified by the CJAP and the Solicitor shall have the right to represent the matter to the Grand Jury. Before ordering dismissal, the Clerk of Court shall notify the Solicitor and the defendant of the Court’s intention to dismiss the case. The Solicitor shall: (1) within ten (10) days of receiving the notice from the Court, notify the victim(s) in writing of the Court’s intended disposition and invite the victim(s) to file a written response with the Solicitor within ten (10) days; and (2) within thirty (30) days file a written response with the Court setting forth in detail the reasons, including the response(s) of the victim(s), why the case should not be dismissed and advising the court of the expected time of disposition. The defendant may submit a written response within thirty days of the Solicitor’s filing. The CJAP may schedule a hearing, dismiss the case without a hearing, or take such further action as may be appropriate. Failure to respond as set forth herein will result in the matter being dismissed pursuant to this provision. If the Solicitor shows *453good cause, the case shall automatically be transferred to the Judicial Docket.
This order shall be effective February 4, 2013.