1. Different Types of Procedure
In every state there are two or more distinct sets of procedures used in criminal matters. The dividing line between the types of procedures is usually the misdemeanor/felony distinction: one set of procedures is used for misdemeanor trials and another set issued for felony trials.
South Carolina has two distinct sets of procedures, but the dividing line is not the traditional misdemeanor/felony distinction. In this State, the difference is based on the jurisdictional line between courts of limited jurisdiction (magistrate's court) and the courts of general jurisdiction (circuit court). This jurisdictional line is the provision in S.C. Code Ann. §22-3-550 -- the $500 or 30 days, or both clause. All offenses falling below this line are within the jurisdiction of the magistrates (and by implication, municipal courts), where one distinct set of procedures is used, and all offenses above this line are within the jurisdiction of the circuit courts where another set of procedures is used. The procedure used in the courts higher than magistrates' courts and municipal courts is not discussed in this book.
The procedure which magistrates use is a "summary procedure." The General Assembly has adopted this definition of magistrate court procedure in §22-3-730:
All proceedings before magistrates shall be summary or with only such delay as a fair and just examination of the case requires.
Summary procedure shall also be used in municipal courts, by virtue of §14-25-45, as amended.
In brief, summary procedure means that the process is not elaborate, that the time between arrest and sentencing is relatively short. Of course, the fact that the proceedings lack many of the formalities required in the higher courts does not mean that various fundamental safeguards can be ignored in the magistrates' courts. (See Rights of the Defendant).
2. Commencement of Proceedings - Warrant and Information
When issuing a courtesy summons for a private citizen, the same considerations apply as for the issuance of a warrant. (See CRIMINAL, Warrants, Arrest Warrants, Arrest without a Warrant.)
Cases within the jurisdiction of the magistrate or municipal judge ordinarily begin with the filing of a complaint against a designated person before a magistrate. The complaining party, who may be a private citizen or a law enforcement officer, appears ex parte (by himself, without the presence of the accused) before the magistrate or municipal judge, and signs under oath a written document which describes the crime alleged to have been committed. If the magistrate or municipal judge is satisfied that a crime is legally stated, and there is probable cause to believe the person committed the crime, then he issues an arrest warrant for the apprehension of the accused person. This procedure is commonly called "swearing out a warrant."
It should be noted that the magistrate or municipal judge is expected to make an independent determination as to whether the facts stated by the complaining party allege an offense in the proper manner. The fact that a law enforcement officer is the complaining party does not mean that the judge should take for granted that the offense is legally stated. The magistrates and municipal judges are not "rubber stamps." They are to examine the accusations on their own merits. It is the duty of the judge to protect citizens against improper and unwarranted arrests, and to assist law enforcement officers in drafting an adequate warrant when the facts indicate that there are reasonable grounds to believe that the accused has committed the offense with which he is charged by the complaining party. (See ARREST WARRANTS).
The warrant must be in writing; therefore, a magistrate or municipal judge cannot orally charge a person with an offense and try him on the oral accusation. The requirement of a written warrant cannot be waived.
The arrest warrant, when signed by the magistrate or municipal judge, constitutes the charging paper upon which a person is tried for a criminal offense before a judge. There is no indictment when the offense is within the jurisdiction of the magistrate or municipal judge. Proceedings commenced without a proper charging paper are illegal, and a conviction under such a procedure would be void. Thus, a valid charging paper is essential to a lawful proceeding before a magistrate or municipal judge in a criminal case. In addition to the arrest warrant there are seven (7) other charging papers recognized in magistrate and municipal courts. They are: 1) the Uniform Traffic Ticket, §56-7-10; 2) the Official Summons of the Department of Natural Resources § 50-3-410; 3) the Official Summons of the S.C. Department of Revenue, Regulation of Alcoholic Liquors, Beer & Wine §61-2-210; 4) Environmental Control Citations, §44-67-50 (usually issued by employees of the Department of Health and Environmental Control); 5) the official summons of the S.C. Forestry Commission, §48-23-95; 6) county or municipal uniform ordinance summons, §56-7-80; and 7) courtesy summons, § 22-5-115.
The warrant must be supported by a written document which the complaining citizen or the law enforcement officer signs and swears to. This document is sometimes called a "complaint." In South Carolina, it is actually an affidavit incorporated into the arrest warrant.
The accusations in the affidavit which support the arrest warrant must be more than simple designations of offenses by name; such a complaint would be no more than a legal conclusion, and inadequate to support the warrant. State v. Randolph, 239 S.C. 79, 121 S.E.2d 349 (1961). While the affidavit need not conform to technical precision, the information in the affidavit must be such as to fully advise the accused of the nature and cause of the accusation, in order that he may be prepared to meet the charge at the proper time.
§ 22-3-710 provides as follows: "All proceedings before magistrates [or municipal judges] in criminal cases shall be commenced on information under oath, plainly and substantially setting forth the offense charged, upon which, and only which, shall a warrant of arrest issue."
The warrant may be amended at any time before trial. (§22-3-720). If the magistrate or municipal judge amends the warrant, he must grant a continuance of the case for a reasonable time in order for the defendant to meet the change where the defendant is surprised by the amendment and would be prejudiced by an immediate trial. Town of Ridgeland v. Gens, 83 S.C. 562, 65 S.E. 828 (1909). A warrant cannot be amended after the trial has begun.
When the warrant accuses a person of committing an act which is susceptible of being designated as several different offenses, the magistrate or municipal judge must elect which charge to favor. Once the charge has been elected, a conviction or an acquittal of that elected charge is a complete bar to further prosecution for the alleged act. (§22-3-740).
The slight extra effort that it takes to draft a warrant and an affidavit with clarity and precision is fully justified. The State should be spared the expense of having to correct sloppy and inadequate processes. Further, it is the right of every citizen charged with a criminal offense to be fully informed of the nature and cause of the accusation. The language used in the warrant and supporting affidavit should be simple enough to be understood by any person of normal intelligence. (See CRIMINAL, Warrants, Arrest Warrants).3. Pre-Trial Intervention (PTI)
Between the time of arrest and the trial date, certain defendants may apply and be accepted to participate in a Pre-Trial Intervention Program. The program is authorized and discussed in §§17-22-10 through 170. If a judge is notified that a defendant has been accepted into PTI, the trial must be continued or postponed until the defendant either successfully completes or fails to complete the program.
Certain persons are not eligible for consideration for PTI. § 17-22-50 provides:
"A person may not be considered for intervention if he has previously been accepted into an intervention program nor may intervention be considered for those individuals charged with blackmail, driving under the influence of intoxicating liquor or drugs, any traffic-related offense which is punishable only by fine or loss of points, or any fish, game, wildlife, or commercial fishery-related offense which is punishable by a loss of eighteen points as provided in § 50-9-1120, any crime of violence as defined in § 16-1-60, or an offense contained in Chapter 25 of Title 16 (Domestic Violence offenses) if the offender has been convicted previously of a violation of that chapter or a similar offense in another jurisdiction."
A person charged with the first offense of possession of marijuana or hashish under § 44-53-370(d)(3) may be permitted to enter PTI if he or she meets the standards of eligibility for the intervention program. Summary court judges may also consider a conditional discharge for individuals charged with a first offense of possession of marijuana or hashish. See § 44-53-450 for details concerning conditional discharges.
There are 7 standards of eligibility for a pretrial intervention program. These standards are set out in § 17-22-60, which provides:
Intervention is appropriate only where:
(1) there is substantial likelihood that justice will be served if the offender is placed in an intervention program;
(2) it is determined that the needs of the offender and the State can better be met outside the traditional criminal justice process;
(3) it is apparent that the offender poses no threat to the community;
(4) it appears that the offender is unlikely to be involved in further criminal activity;
(5) the offender, in those cases where it is required, is likely to respond quickly to rehabilitative treatment;
(6) the offender has no significant history of prior delinquency or criminal activity;
(7) the offender has not previously be accepted in a pretrial intervention program.
For persons charged with fish, game, wildlife, or commercial fishery-related offenses, there are additional conditions for admission to PTI. These conditions are set out in § 17-22-55 which provides:
As a condition of admission to the pretrial intervention program of a person charged with a fish, game, wildlife, or commercial fisher-related offense which does not disqualify him for intervention, this person shall pay an additional administrative charge equal to the maximum monetary fine, not to exceed five hundred dollars, which could be imposed for the offense. The administrative charge must be deposited in the game and fish fund of the county where the offense was committed. Also, if any property was seized and confiscated at the time of the arrest for the offense, as a condition of admission to the pretrial intervention program, the offender must agree to the retention and sale of that property as provided by law by the law enforcement agency making the seizure. The proceeds from the sale also must be deposited in the game and fish fund of the county wherein the offense was committed.
If the defendant successfully completes the PTI program, the solicitor's office (which is responsible for the PTI program) effects a non-criminal disposition of the charge, usually a nolle prosequi. The solicitor's office must dispose of the charge even if the offense is one that the solicitor normally does not prosecute, e.g., simple assaults or petit larcenies. If the defendant fails to complete the program, the trial court is informed and a trial date is set. If the status of a defendant's participation in PTI is not reported to the trial court within six (6) months of his entry into the program, the trial court should inquire to the PTI office regarding the case.
Participation in PTI is entirely between the defendant and the solicitor, i.e., a judge does not send or refer a defendant to PTI. Since the solicitor's office may not approach a defendant about PTI and most defendants without attorneys are unaware of PTI, a judge at a defendant's bond proceeding may give the defendant a brochure or otherwise inform him of PTI and that he, the defendant, should inquire further at the solicitor's office. For complete information regarding PTI, please consult §§ 17-22-10 through 17-22-170.
PTI and conditional discharges are the only two diversionary programs available to magistrates and municipal judges, unless the solicitor in each jurisdiction has established and made available for summary court use other diversionary programs. County and municipal governments and/or their summary courts are prohibited from creating independent diversionary programs. See Order of the Chief Justice dated September 12, 2003, in Orders Section.
As a general rule, the accused has a right to insist that he be present at all stages of the proceedings in a criminal case. But summary cases have always been treated somewhat differently. The accused may elect not to be present in trials before magistrate or municipal courts without the consent of the court. Although it is to be avoided if feasible, an accused may be tried in absentia. The proper course of action if this occurs is for the trial judge, before the start of defendant's trial in absentia, to make findings of fact regarding 1) whether the defendant had received notice of her right to be present, and 2) whether the defendant had been warned that the trial would proceed in his or her absence upon a failure to attend court. State v. Jackson, 288 S.C. 94, 341 S.E.2d 375 (1986). See City of Aiken v. Koontz, 368 S.C. 542, 629 S.E.2d 685 (2006), where municipal trial court correctly proceeded with a trial in defendant’s absence, after making appropriate factual findings on the issue of whether defendant had notice of trial and whether he was warned the trial would proceed in his absence.
When a defendant who has been properly notified does not appear when the trial is scheduled, the magistrate or municipal judge should call his name, or direct that the constable call his name, three times from the courthouse door. After waiting a reasonable time, the magistrate or municipal judge may proceed.
A trial in absentia, as a procedural matter, is only slightly different from a trial at which the defendant appears. The complaining citizen or law enforcement officer is placed under oath and allowed to present his evidence. Other witnesses, if any, are permitted to testify under oath. Additionally, the constable is summoned to testify that he called the defendant's name from the courthouse door and that there was no response. In those cases where the magistrate or municipal judge himself called the defendant's name, he lets the record show that the defendant's name was called and that he did not respond.
When the evidence is complete, the magistrate or municipal judge makes his findings. If the defendant is acquitted, the proceedings are terminated. If the defendant is found guilty, the magistrate or municipal judge imposes sentence, according to the penalty allowed for the offense by law. He may use the testimony presented, and any other facts at his disposal, in determining the sentence to be imposed. If the sentence is a fine, the judge may (but does not have to) apply the forfeited bond to the sentence; if the sentence is a jail term, a bench warrant is issued for the arrest of the defendant.
Although a trial in absentia is more complicated and more time-consuming than a simple declaration that the defendant's bond is forfeited for failure to appear, it is preferred to a forfeiture because the trial in absentia is a final determination of the matter. Where there is a forfeiture of bond and nothing more, demand by the defendant may entitle him to a trial at a later date. However, the South Carolina Supreme Court has held that a bond forfeiture is equivalent to a conviction when the Legislature has defined it as a conviction by statute. Scott v. State, 334 S.C. 248, 513 S.E.2d 100 (1999). Therefore, if a statute provides that forfeiture of bond is the equivalent of a conviction, and absent a timely motion for new trial or filing of appeal, the forfeiture would preclude a trial at a later date. As an example, §56-5-6220 provides the entry of any plea of guilty, the forfeiture of any bail posted or the entry of a plea of nolo contendere for a violation of traffic laws in this State or any political subdivision thereof shall have the same effect as a conviction after trial under the provisions of such traffic laws. However, in any such case where bail is posted by the defendant, no forfeiture of such bail shall become effective until ten days following the date of arrest, unless the defendant voluntarily forfeits bail within the ten-day period. Pursuant to the Scott case cited above, a forfeiture of bond for a traffic offense would constitute a conviction.
The first act of a defendant which a magistrate must require in a criminal proceeding is the entering of a plea. The process which a magistrate must follow in the plea procedure is threefold:
a) Jurisdiction - determine if the court has jurisdiction over both the defendant and his alleged offense.
b) Counsel - insure that the defendant is represented by proper legal counsel, or obtain waiver of counsel from the defendant.
c) Pleading - obtain one of five possible pleas from the defendant -- guilty, not guilty, nolo contendere, double jeopardy or no plea.
This section will examine each of these areas.
(See "Jurisdiction")
Once the magistrate or municipal judge has determined that he has jurisdiction over a criminal offense, he must then insure that the defendant has access to proper legal representation. Article I, Section 14 of the S.C. Constitution grants to the accused the right to be "fully heard in his defense by himself or by his counsel or both." Since the law and its application is often a very complex process, the magistrate or municipal judge should encourage the defendant to obtain an attorney. The judge should also inform the defendant that if the accused cannot afford an attorney, the state will provide one. (See Defense of Indigents Act, §17-3-10, et. seq.) Should the defendant decide to use counsel, the judge should not accept any plea until the defendant has had an opportunity to consult with his lawyer. If, on the other hand, the defendant should decide not to make use of an attorney's services, the judge should carefully examine the accused to determine if he is fully aware of his rights. A waiver of right to counsel should be signed by the defendant.
This examination is a very important step in the plea process. To be lawful, the defendant's decision to waive counsel must be made both voluntarily and with an understanding of his rights. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); State v. Lambert, 266 S.C. 574, 225 S.E.2d 340 (1976). Though an absence of counsel does not invalidate a plea, it does greatly increase the burden put upon the judge to make sure that the defendant is aware of his rights. Defendants have the right to refuse court-appointed counsel and the right to represent themselves. However, an unrepresented defendant should be advised of the dangers of self-representation. Faretta v. California, 422 U.S. 806 (1975). If a defendant is convicted, receives jail time, and was unrepresented, the summary court level conviction will not qualify to enhance a subsequent offense unless there is proof that Faretta warnings, or the dangers of self-representation, were given to a defendant prior to plea or conviction. Therefore, these warnings must be given in order for summary court convictions to be used in the future for enhancement purposes. See State v. Spratt, 383 S.C. 212, 678 S.E.2d 266 (Ct. App. 2009).
In order to assist a judge in providing these warnings to an unrepresented defendant, Form SCCA 684, Faretta Warnings is available in the Form section of this Bench Book for that use. This document clarifies to defendants the advantages of attorney representation, and if they choose to represent themselves, the potential ramifications. After advising the defendant of the danger of self-representation, you should inquire on the record if the defendant wishes to be screened for court-appointed counsel (and advise him if he does not qualify, he is responsible for retaining counsel), wishes to retain an attorney, or wishes to represent himself. This form may be used during bond setting or at the defendant’s first court appearance. Since counties and municipalities differ as to indigency screening procedure, it would be up to each jurisdiction to determine the appropriate time to administer these rights to the defendant. We recommend that the form be signed by both the defendant and the Judge, and go in the defendant’s case file.
The waiver of the right to have a lawyer becomes especially critical when the defendant decides to plead guilty. In such instances, the judge must explain to the defendant that he is giving up the following rights:
1) the right to a trial by jury,
2) the right to confront his accusers, and
3) the privilege against compulsory self-incrimination.
The defendant must have an understanding of these rights, and realize how they relate to the facts of his case. Further, the court must be able to show in the court record that the accused both understood his offense and its possible consequences, and that he was not led into this decision by false promises or threats. Vickery v. State, 258 S.C. 33, 186 S.E.2d 827 (1972). Some examples of the type of questions the judge should ask the defendant are:
- "Do you understand the rights you have given up by pleading guilty?
- "Do you understand that you have the right to:
1) a speedy trial by an impartial jury?
2) a public trial by jury?
3) testify in your own behalf?
4) present witness and evidence in your own behalf?
5) cross-examine the State's witness?"
- "Do you understand that the State must prove beyond a reasonable doubt that you are guilty of this offense?"
- "Do you understand that a jury verdict must be unanimous?" (Explain if necessary)
- "Do you understand that by pleading guilty, you are admitting all matters of fact in the accusation? Do you further understand that by pleading guilty, you give up any objections you may have to this charge?"
- "Do you understand the possible punishments I can impose upon you for committing this crime?" [Cite the maximum penalty(s)].
- "Are you making this decision to plead guilty of your own free will? Have you in any way been threatened or forced to accept a guilty plea?"
The judge should always ask the defendant, as well as the state, whether the defendant has decided to plead guilty as the result of a plea bargain with the state. The judge must then inform both parties that the agreement must be outlined in the record in order to be enforced by the appellate court. The judge should also ask these further questions:
- "Have you agreed to plead guilty as a result of a bargain with the prosecutor? What is your understanding of this bargain?"
- "Do you understand that this bargain is not a guarantee and that I may impose one of the punishments I told you about regardless of the bargain?"
In order to assist a judge in providing these warnings to a defendant, Form SCCA 685, Guilty Plea Information is available in the Form section of this Bench Book for that use. It identifies the defendants’ rights at trial and that those rights are being given up freely, knowingly and voluntarily when defendants plead guilty. The Judge and the defendant should sign the document, which would go in the case file. Defense attorneys should go through these rights with their clients before they plead (and sign it as a witness), but judges should go through their rights again on the record.
With regards to plea bargaining, the judge must remain isolated and detached from the negotiations. In State v. Cross, 270 S.C. 44, 240 S.E.2d 514, at 516-517, (1977), the S. C. Supreme Court stated:
While we acquiesce in the tendency of the courts to allow plea bargaining, we are of the opinion that the judge should not initiate or influence the agreement, nor be a party to the negotiations. A plea induced by the influence of the judge cannot be said to have been voluntarily entered. The solicitor is the adversary of the defendant and his counsel. The negotiations should be between the adversaries. The judge is not the adversary of either. An agreement reached between the solicitor and his adversary can never be more than a recommendation. The judge must remain in a position of complete neutrality such that he may, in the last analysis, exercise freedom of sentencing judgment based on all of the facts.
As a final step, the judge should in a step-by-step process, review the evidence that the prosecutor would have introduced if the case had been tried. He should ask the defendant if he committed the alleged acts. He should also obtain a full statement from investigating officers. State v. DeAngelis, 256 S.C. 364, 182 S.E.2d 732 (1971). Then, and only then, if the judge believes that all parties involved in the proceeding are telling the truth and are not under the influence of any drugs or alcohol, should he accept the guilty plea.
After the judge has determined his jurisdiction and determined whether or not the defendant wants counsel, he should ask for the defendant's plea. One of the following pleas may be entered by the defendant or his attorney:
(1) Guilty - an admission or confession of guilt to the crime. If a written confession accompanies the defendant, make sure that the confession is accurate and not made under duress. A guilty plea or confession is not extracted under duress if the defendant makes it from fear of the possible penalty the court might impose. Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970).
A judge's acceptance of a guilty plea is subject to the same requirement of voluntariness and understanding outlined in the previous section. (See questions).
(2) Not Guilty - a denial of guilt which calls upon the prosecution to prove its case. When the defendant pleads not guilty, the judge should set a court date, and ask the accused if he is prepared to go to court on that date.
(3) Nolo Contendere - a defendant's assertion that "I do not wish to contend" the charge. The court should explain that the plea of nolo contendere has the same legal effect as a plea of guilty, except that such a plea may not be used against the defendant as an admission of guilt to the alleged act in a civil proceeding. Kibler v. State, 267 S.C. 250, 227 S.E.2d 199 (1976). The judge should treat a plea of nolo contendere as a guilty plea. (§17-23-40).
(4) Double Jeopardy - a special plea where the defendant asserts that he has already been prosecuted for the same or a different offense that arises out of the same criminal transaction. Section 17-23-20 prohibits double prosecution for a criminal act that constitutes two or more offenses.
(5) No Plea - a refusal by the defendant to enter a plea. In such cases, the judge should enter a plea of not guilty and set a trial date.
There are several sections of the S.C. Constitution which concern the jury trial. Article I, Section 14 guarantees a "speedy and public trial by an impartial jury." Article I, Section 14 states that the right to a jury trial is "preserved inviolate." In addition, the right to a trial by jury, provided in the Sixth Amendment to the U.S. Constitution, has been made applicable to the states through the Fourteenth Amendment to the U.S. Constitution. Duncan v. Louisiana, 391 U.S. 145, 88 S. Ct. 1444 (1968).
The general statutes of South Carolina provide:
"Every person arrested and brought before a magistrate, charged with an offense within his jurisdiction, shall be entitled on demand to a trial by jury which shall be selected as provided in this chapter." (§22-2-150).
Preparation of the jury box and the selection of jurors for trial in the magistrate's court is provided for in §22-2-50 et. seq. The chief summary court judge of the county is required to forward to each magistrate a list of qualified electors in the district or vicinity of each magistrate's court. Within the first thirty (30) days of each calendar year, these names must be placed in the jury box prepared as provided in §22-2-60. § 22-2-80 provides a manner of selection of the jury list for a single trial. Subsection (A) provides "A person appointed by the magistrate who is not connected with the case for either party must draw at least thirty (30) names, but not more than 100 names, from the jury box, and this list of names must be delivered to each party or to the attorney for each party. " § 22-2-80 (B) provides that "if a court has experienced difficulty in drawing a sufficient number of jurors from the qualified electors of the area, and, prior to implementing a process pursuant to this subsection, seeks and receives approval of South Carolina Court Administration, the person selected by the presiding magistrate may draw at least one hundred (100) names, but not more than a number determined sufficient by court administration for the jury list, and shall deliver this list to each party or the attorney for each party." Request for prior approval must be in writing. The South Carolina Supreme Court has held that nothing in § 22-2-80 required that jurors be brought face-to-face with the accused prior to the exercise of peremptory challenges. State v. Potts, 347 S.C. 126, 554 S.E.2d 38 (2001). § 22-2-80 governs the selection of juries for single trials in magistrates court. § 22-2-90 governs the selection of juries for terms of court in magistrates court, and does not similarly provide for the selection of jurors from a list.
§ 22-2-90 provides the procedure for drawing jury list for courts having scheduled terms of court. Under this section, "[n]ot less than ten nor more than forty-five days before to a scheduled term of jury trials, a person selected by the presiding magistrate must draw at least forty (40) jurors, but not more than one hundred (100) jurors, to serve one week only. " § 22-2-90 provides that the courts which schedule terms for jury trials may receive prior approval from South Carolina Court Administration to "draw at least one hundred (100) names but not more than a number determined sufficient by Court Administration to serve one week only" if the court has experienced difficulty in drawing a sufficient number of jurors. § 22-2-90(C). Request for prior approval must be in writing.
Immediately after such jurors are drawn the magistrate shall issue his writ of venire facias for such jurors requiring their attendance on the first day of the week for which they have been drawn and such writ shall be forthwith delivered to the magistrate's constable or the sheriff of the county concerned."
Prior to the trial date, the names drawn should be placed in a hat or box and randomly drawn out one at a time with each party or his attorney present. Each party has a maximum of six (6) peremptory challenges as to primary jurors and four (4) peremptory challenges as to alternate jurors, and other challenges for cause. The names are drawn and challenged until six (6) jurors and four (4) alternate jurors are selected. If it is not possible to select the jurors and alternates from the names drawn, names shall be randomly drawn from the jury box until a sufficient number is selected. Finally, the ten (10) prospective jurors are summoned for the trial date. §22-2-110 provides: [p]arties shall exercise peremptory challenges in advance of the trial date, and only persons selected to serve and alternates shall be summoned for the trial."
"If, at the time set for trial, there are not sufficient jurors to proceed because one or more have failed to attend, have not been summoned, or have been excused or disqualified by the court, additional jurors must be selected from the remaining names or in the manner provided in § 22-2-80 or § 22-2-100. " (§ 22-2-120.)
§ 22-2-130 provides in part, "No person shall serve on a jury in a magistrate's court more than once every calendar year."
Jurors in magistrates' courts may be drawn by computer. § 22-2-195 provides, "[i]n lieu of the manner required by this chapter, jurors for magistrates' courts in a county, at the discretion of the governing body of the county, may be drawn and summoned by computer in the manner the Supreme Court by order directs."
A juror should not be chosen if he is known to be closely related to either side of the case, or if he is a county official, or court employee, or if he has been convicted of a crime punishable by imprisonment of more than one year, or if he is incapable by reason of mental or physical infirmity to render efficient jury services, or if he is incapable of reading or writing (or understanding) the English language, or if he has less than a 6th grade (or equivalent) education.
§ 14-7-840 provides:
No person is exempt from service as a juror in any court of this State except men and women over sixty-five years of age. A person exempt under this section may be excused upon telephone confirmation of date of birth and age to the clerk of court or chief magistrate. (Many individuals over the age of 65 wish to serve on a jury and are constitutionally entitled to that duty.) Notaries public are not considered state officers and are not exempt under this section.
§ 24-3-930 provides:
All guards, keepers, employees and other officers employed at the Penitentiary shall be exempted from serving on juries.
Note: Please Note that these are exemptions, not disqualifications from jury service. These individuals are entitled to serve and must be issued a juror summons if a court draws their name.
A student or school employee selected for jury service during the school term may request a postponement to a date that does not conflict with the school term. This applies to any public or private school employee, a person primarily responsible for the elementary or secondary education of a child in a home or charter school, or a person who is an instructor at an institution of higher learning including a technical college. For purposes of this subsection, a 'school employee' is a person employed as a teacher, certified personnel at the building level, or bus driver by a school, a school system, or a school district offering educational programs to grades K-12 and to institutions of higher learning, including technical colleges.For purposes of these sections, a student is a person enrolled in high school or an institution of higher learning, including technical college. (§§22-2-85 and 14-7-845). § 22-2-135 provides that a person who performs such essential services to a business, commercial, or agricultural enterprise that it would cease to function if the person was required to perform jury duty may be excused or transferred to another term of court by the magistrate. The person must furnish an affidavit to the clerk of the court requesting to be excused from jury duty. § 14-7-860 was amended to provide that a person who is the primary caretaker of a person 65 years of age or older or a severely disabled person who cannot care for himself or cannot be left unattended may be excused from jury duty by the presiding judge.
If a juror who has been summoned for jury duty in a magistrate's court should fail to appear at the designated time and place and fail to supply to the magistrate within forty-eight (48) hours sufficient reason for such failure to appear in obedience to the venire issued, the magistrate holding such court may order the delinquent juror to pay a civil penalty not exceeding $100.00. Failure to pay the fine constitutes contempt of court. (§22-2-130).
After the jury is selected and before it is sworn, the defendant or the prosecution may ask the court to hold a hearing, charging that the other side was purposeful and discriminatory in their use of peremptory strikes in selecting the jury. The magistrate must then hold a Batson (Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986)) hearing to determine if the charges are legitimate. State v. Chapman, 317 S.C. 302, 454 S.E.2d 317 (1995). The South Carolina Supreme Court in State v. Haigler, 334 S.C. 623, 515 S.E.2d 88 (1999), discussed at length as to how a Batson hearing must be conducted. The court stated:
A Batson hearing is conducted in the following manner. First, the trial judge must hold a Batson hearing when members of a cognizable racial group or gender are struck and the opposing party requests a hearing. Second, the proponent of the strike must present a race-or gender-neutral explanation. At this second step, the proponent of the strike no longer is required to offer a reason that is race or gender-neutral and clear, reasonable specific, and legitimate. The reason must only be race-or gender neutral. Third, the opponent of the strike must show that the race-or gender-neutral explanation given was mere pretext. State v. Adams, 322 S.C. 114, 124, 470 S.E.2d 366, 372 (1996) [adopting the Batson procedure set forth in Purkett v. Elem, 513 U.S.765, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995)]. The burden of persuading the court that a Batson violation has occurred remains at all times on the opponent of the strike. Id.
The court went on to say that,"[p]retext generally will be established by showing that similarly situated members of another race were seated on the jury. Under some circumstances, the race-neutral explanation given by the proponent may be so fundamentally implausible that the judge may determine, at the third step of the analysis, that the explanation was mere pretext even without a showing of disparate treatment." Payton v. Kearse, 329 S.C. at 55, 495 S.E.2d at 207; accord State v. Adams, supra; State v. Casey, 325 S.C. 447, 481 S.E.2d 169 (Ct. App. 1987).
In Payton v. Kearse, the court adopted a "'tainted' approach in which a fundamentally implausible or pretextual reason for a strike taints any other legitimate reason for the strike. 'Once a discriminatory reason has been uncovered--either inherent or pretextual--this reason taints the entire jury selection procedure.'" The court went on to say that the purpose of Batson "is to ensure peremptory strikes are executed in a nondiscriminatory manner." Id., 329 S.C. at 59, 495 S.E.2d at 210.
In State v. Giles, Op. No. 27353 (S.C. Sup. Ct. filed Jan. 15, 2014), the Supreme Court found that the explanation provided by the proponent of a peremptory challenge must be clear and reasonably specific so the opponent of the challenge has a full and fair opportunity to demonstrate pretext in the reason given and the trial court to assess the plausibility of the reason in light of all the evidence with a bearing on it. Reasonable specificity is necessary because comparison to other members of the venire for purposes of a disparate treatment analysis is impossible if the proponent of the challenge provides only a vague or very general explanation. The explanation given may in fact be implausible or fantastic, but it may not be so general or vague that it deprives the opponent of the challenge of the ability to meet the burden to show, or the trial court of the ability to determine whether, the reason given is pretextual.
Therefore, if the party accused of using peremptory strikes in a discriminatory manner fails to show a valid race or gender neutral reason for the strikes, a new jury must be selected from the jury box; otherwise, the original jury panel selected may be sworn and the case may proceed. Under the guidelines as set forth by the U.S. Supreme Court, any person regardless of race or gender may set forth a valid Batson claim. Likewise, the striking of any juror can raise the inference of race and/or gender based discrimination.
The general statutes of South Carolina provide:
Any person to be tried in a municipal court may, prior to trial, demand a jury trial, and such jury when demanded, shall be composed of six persons drawn from the qualified electors of the municipality and drivers license and ID card holders in the manner prescribed herein. The right to a jury trial shall be deemed to have been waived unless demand is made prior to trial. (§14-25-125).
The jury list is composed of all names on the official list of qualified voters of the municipality merge with the list of South Carolina drivers license and identification cardholders, which list is furnished to the municipality by the State Election Commission each year. Within the first thirty (30) days of each calendar year, these names are placed in a jury box prepared as provided in §14-25-145. The procedure for drawing a jury for a single trial is found in § 14-25-165(a)(2), which provides "[a] person appointed by the municipal judge who is not connected with the trial of the case for either party must draw out of compartment 'A' of the jury box at least thirty (30) names, but not more than one hundred (100) names, and the list of names must be delivered to each party or to the attorney for each party.
§ 14-25-165 provides that if a municipal court has experienced difficulty in drawing a sufficient number of jurors, the court may receive prior approval from South Carolina Court Administration to draw "at least one hundred (100) names, but not more than a number determined sufficient by Court Administration to serve one week only. " (§ 14-25-165(b)(3).) § 14-25-165(b)(4) provides that "[i]mmediately after the jurors are drawn, the judge must issue a writ of venire facias for the jurors requiring their attendance on the first day of the week for which they have been drawn. This writ must be delivered to the chief of police or may be served by regular mail by the clerk of court."
§ 14-25-165(b)(1) provides the procedure for drawing jury lists for courts scheduling terms of court, rather than single trials. Under subsection (b)(2), "[n]ot less than ten nor more than forty-five (45) days prior to a scheduled term of jury trials, a person selected by the presiding judge shall draw at least forty jurors, but not more than one hundred (100) jurors, to serve one week only. § 14-25-165(b)(3) allows municipal courts which have scheduled terms of court to receive prior approval from South Carolina Court Administration to draw "at least one hundred (100) names, but not more than a number determined sufficient by Court Administration to serve one week only." § 14-25-165 (b)(4) provides that "[i]mmediately after the jurors are drawn, the judge must issue a writ of venire facias for the jurors requiring their attendance on the first day of the week for which they have been drawn. This writ must be delivered to the chief of police, or may be served by regular mail by the clerk of court."
Pursuant to § 14-25-165(c), "[t]he names drawn pursuant to either subsection (a) or (b) must be placed in a hat or box and individual names randomly drawn one at a time until six (6) jurors and four (4) alternates are selected. Each party has a maximum of six (6) peremptory challenges as to primary jurors and four (4) peremptory challenges as to alternate jurors, and any other challenges for cause the court permits." The names are drawn and challenged until six (6) jurors and four (4) alternate jurors are selected. If it is not possible to select the jurors and alternates from the names drawn, a name shall be randomly drawn from the jury box until a sufficient number of jurors and alternates are selected.
In municipal court, peremptory challenges must be utilized on the date set for trial. If, on the date of the trial, less than six (6) jurors may be seated for the trial, additional juror(s) are selected from the remainder of the list, or if the list is exhausted, randomly from the jury box.
§ 14-25-170 provides for the drawing and summoning of jurors by computer. "In lieu of the manner requested by this chapter, jurors for municipal courts, at the discretion of the governing body of the municipality, may be drawn and summoned by computer in the manner the Supreme Court by order directs."
A juror should not be chosen if he is known to be closely related to either side of the case, or if he is a county official, or if he has been convicted of a crime punishable by imprisonment of more than one year, or if he is incapable by reason of mental or physical infirmity to render efficient jury services, or if he is incapable of reading or writing (or understanding) the English language. (§§14-7-810 and 820).
§ 14-7-840 provides:
No person is exempt from service as a juror in any court of this State except men and women over sixty-five years of age. A person exempt under this section may be excused upon telephone confirmation of date of birth and age to the clerk of court or chief magistrate. Notaries public are not considered state officers and are not exempt under this section.
Please note that this is an "exemption," not a "disqualification," from jury service. Many individuals over the age of 65 wish to serve on a jury and are constitutionally entitled to that duty. These individuals are entitled to serve and must be issued a juror summons if a court draws their name.
A student or school employee selected for jury service during the school term may request a postponement to a date that does not conflict with the school term. (§14-7-845). § 14-25-180 provides that "[u]pon furnishing an affidavit to the clerk of court requesting to be excused from jury duty, a person either may be excused or transferred to another term of court by the municipal judge if the person performs services for a business, commercial, or agricultural enterprise, and the person's services are so essential to the operations of the business, commercial, or agricultural enterprise that the enterprise must close or cease to function if the person is required to perform jury duty." § 14-7-860 provides that a person who is the primary caretaker of a person 65 years of age or older or a severely disabled person who cannot care for himself or cannot be left unattended may be excused from jury duty by the presiding judge.
If a juror who has been summoned for jury duty in a municipal court should fail to appear at the designated time and place and fail to supply to the municipal judge within forty-eight (48) hours sufficient reason for such failure to appear in obedience to the venire issued, the juror may be punished for contempt. He should be given an opportunity to appear before the municipal court at the time he is sentenced for contempt, however. Such appearance may be obtained through issuance of a Rule to Show Cause. If the Rule to Show Cause is ineffective, you may then issue a bench warrant. (See §14-25-185).
After the jury is selected and before it is sworn, the defendant or the prosecution may ask the court to hold a hearing, charging that the other side was purposeful and discriminatory in their use of peremptory strikes in selecting the jury. The municipal judge must then hold a Batson (Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986)) hearing to determine if the charges are legitimate. State v. Chapman, 317 S.C. 302, 454 S.E.2d 317 (1995). The South Carolina Supreme Court in State v. Haigler, 334 S.C. 623, 515 S.E.2d 88 (1999), discussed at length as to how a Batson hearing must be conducted. The court stated:
A Batson hearing is conducted is the following manner. First, the trial judge must hold a Batson hearing when members of a cognizable racial group or gender are struck and the opposing party requests a hearing. Second, the proponent of the strike must present a race- or gender-neutral explanation. At the second step, the proponent of the strike no longer is required to offer a reason that is race or gender-neutral and clear, reasonable specific, and legitimate. The reason must only be race-or gender neutral. Third, the opponent of the strike must show that the race-or gender-neutral explanation given was mere pretext. State v. Adams, 322 S.C.114, 124, 470 S.E.2d 366, 372 (1996) [adopting the Batson procedure set forth in Purkett v. Elem, 513 U.S. 765, 115 S. Ct. 1769, 131 L.Ed.2d 834 (1995)]. The burden of persuading the court that a Batson violation has occurred remains at all time on the opponent of the strike. Id.
The court went on to say that "[p]retext generally will be established by showing that similarly situated member of another race were seated on the jury. Under some circumstances, the race-neutral explanation given by the proponent may be so fundamentally implausible that the judge may determine, at the third step of the analysis, that the explanation was mere pretext even without a showing of disparate treatment." Payton v. Kearse, 329 S.C. at 55, 495 S.E.2d at 207; accord State v. Adams, supra; State v. Casey, 325 SC 447, 481 S.E.2d 169 (Ct. App. 1987).
In Payton v. Kearse, the court adopted a "'tainted' approach in which a fundamentally implausible or pretextual reason for a strike taints any other legitimate reason for the strike. 'Once a discriminatory reason has been uncovered--either inherent or pretextual--this reason taints the entire jury selection procedure.'" The court went on to say that the purpose of Batson "is to ensure peremptory strikes are executed in a nondiscriminatory manner." Id., 329 S.C. at 59, 495 S.E.2d at 210.
In State v. Giles, 407 S.C. 14, 745 S.E.2d 261 (2014), the Supreme Court found that the explanation provided by the proponent of a peremptory challenge must be clear and reasonably specific so the opponent of the challenge has a full and fair opportunity to demonstrate pretext in the reason given and the trial court to assess the plausibility of the reason in light of all the evidence with a bearing on it. Reasonable specificity is necessary because comparison to other members of the venire for purposes of a disparate treatment analysis is impossible if the proponent of the challenge provides only a vague or very general explanation. The explanation given may in fact be implausible or fantastic, but it may not be so general or vague that it deprives the opponent of the challenge of the ability to meet the burden to show, or the trial court of the ability to determine whether, the reason given is pretextual.
Therefore, if the party accused of using peremptory strikes in a discriminatory manner fails to show a valid race or gender neutral reason for the strikes, a new jury must be selected from the jury box; otherwise, the original jury panel selected may be sworn and the case may proceed. Under the guidelines as set forth by the U.S. Supreme Court, any person regardless of race or gender may set forth a valid Batson claim. Likewise, the striking of any juror can raise the inference of race and/or gender based discrimination.
Once six jurors have been selected as provided by law, they are then placed on voir dire if either side makes a motion to the judge to do so. Voir dire means "to speak the truth", and refers to an investigation to assure that each prospective juror is fair and unbiased in the case. It is the judge's duty to assure himself that each juror is unbiased, fair, and impartial. State v. Britt, 237 S.C. 293, 117 S.E.2d 379 (1960). Therefore, a judge can place jurors on their voir dire on his own motion. The voir dire examination is a guarantee of the right of the defendant to an impartial jury, and when a timely request is made, it is the duty of the magistrate or municipal judge to make reasonable inquiry of the jurors to determine whether bias or prejudice exists. State v. Brown, 240 S.C. 357, 126 S.E.2d 1 (1962). If a judge were to refuse to examine the jurors on voir dire when properly requested, this would be a clear violation of the defendant's right to an impartial jury under Art. I, Section 14 of the S.C. Constitution, and would require reversal of any conviction against him.
The judge usually conducts the voir dire examination, but he/she may permit the parties or their attorneys to examine the jurors. Ordinarily, however, the judge does the actual questioning, although he/she may accept questions from the parties to ask of the jurors.
The questions to be asked are within the discretion of the judge, but generally each juror shall be examined as to whether he is related to either party, has any interest in the case, has already expressed or formed an opinion of the case, or has any bias or prejudice in the case. If a juror indicates in some way that he cannot give the defendant a fair trial, or that he is biased or prejudiced in some way that would be detrimental to the just disposition of the case, he must be dismissed from the panel, and replaced according to the procedure outlined above. It should be noted that this is a dismissal for cause, and has nothing to do with the peremptory challenges which are afforded each side in §22-2-100 prior to the trial date.
After six qualified jurors have been seated, the judge then administers the oath. A suggested form is:
Do you, and each of you, solemnly swear or affirm that you will well and truly try the issues between the State of South Carolina [or Municipality of _________, if a violation of a municipal ordinance is involved] and the defendant in the case at bar, and give a true verdict according to the law and the evidence presented, so help you God?
After a panel of six persons has been placed in the box, the jury is seated and sworn. The warrant is read to them, perhaps with some additional statement to clarify the nature of the charges. For example:
Ladies and gentlemen of the jury, the State alleges that the defendant, Mr. Jones, on May 1, 1976, committed the crime of petit larceny by taking some garden tools from Mrs. Alice Doe, without her permission. Mr. Jones pleads not guilty. That is what this case is all about. It is your job to determine beyond reasonable doubt whether he did so, or to find him not guilty.
8. Taking Down and Preserving Testimony
Before proceeding to the introduction of evidence, the magistrate should determine whether the defendant is willing to waive his right to have the testimony taken down in writing by the magistrate. If the defendant does not waive this right, the magistrate must write down the testimony of each witness and each witness must sign the writing. At some time during or after the trial, preferably immediately after the witness has testified, the magistrate should read the statement to the witness and have him sign it. Where a court reporter is available, or the testimony is electronically recorded, the magistrate does not have to write down the testimony and have the witness sign it; the record is preserved by the court reporter's transcript or the electronic recording. (§22-3-790). This statutory obligation requiring the magistrate to write down the testimony unless waived by the defendant is burdensome on the magistrate and since the state cannot afford court reporters for every magistrate, it is recommended that the testimony be recorded.
Although it is not clear what §22-3-790 requires of the magistrate when he is to take down "the testimony of all witnesses," it is generally accepted that this does not mean that he is to make a verbatim copy of the testimony. If he does not have a tape recorder, he should make sufficient notations as to all essential facts alleged by the witnesses so that the record is clear and as complete as practicable.
§ 14-25-195 gives any party the right to have testimony in a jury trial taken stenographically or mechanically by a reporter. If the party does not provide for the mechanical recording of the proceeding himself, but requests the court to do so, he must pay the charges of the municipal court reporter for the taking and transcribing of the testimony. It is not clear what the responsibility of the municipal judge may be when the defendant appeals from the sentence or judgment, and has not provided for the recording himself, or requested the court to do so and a reporter was not present at trial.
Each party has the right to introduce witnesses to bolster his case. Certainly persons who have direct knowledge of the facts involved provide useful testimony. In addition, character witnesses may be introduced to testify as to the veracity and general good behavior of the defendant and other principals in the case. The judge does not have to allow an interminable string of witnesses, but he must certainly permit the introduction of all witnesses who have testimony which is material and relevant.
A magistrate or municipal judge can summon a witness, under threat of contempt, on request of either party. The witness in a magistrate's court must reside in the county of the magistrate's court, however. The summons must be served in such a manner as to be received by the witness at least one day before the trial. (§22-3-930). Should a properly notified witness fail to appear, the judge may issue a rule to show cause, commanding the appearance of that person for the purpose of offering "good cause" for his failure to appear. If the delinquent witness should fail to offer "good cause", the judge may punish that witness for contempt by imposition of a sentence up to the limits imposed on magistrate's court in § 22-3-550. (§22-3-930).
In some cases, a magistrate or municipal judge may take depositions (testimony de bene esse) from a witness to be used at the trial where it appears that attendance of the witness is virtually impossible because of extreme age, sickness, infirmity, indispensable absence on public official duty, in consequence of intended removal from the State before trial, or when the witness is a resident of another county or outside the limits of the State. (§22-3-940). In lieu of the magistrate or municipal judge taking the deposition himself, he may cause it to be done by a magistrate or an officer authorized by law to administer oaths. The opposing party must be given proper notice according to the statute, and has the right to attend. The deposition is sealed and conveyed to the magistrate or municipal judge authorizing it.
When beginning a criminal trial, the judge should state the nature of the proceeding and require all potential witnesses in the case to take the following oath:
Do you swear or affirm that the testimony you are about to give is the truth, the whole truth, and nothing but the truth, so help you God?
In some instances, a witness may refuse to take an oath or appeal to God based on religious beliefs. In U. S. v. Looper, 419 F.2d 1405, at 1407 (4th Cir. 1969) it was stated that:
The common law. . . requires neither an appeal to God nor the raising of a hand as a prerequisite to a valid oath. All that the common law requires is a form or statement which impresses upon the mind and conscience of a witness the necessity for telling the truth.
All witnesses may be sworn at the same time, but a witness who enters the proceedings later is required to take the "oath" individually before testifying.
Both parties in a criminal trial have the right to make an opening statement, present evidence, and make a closing statement. The prosecution makes its opening statement first and then the defense may offer its opening statement, or it may wait until after the prosecution has presented its case. In any event, the prosecution puts forth its case before the defense. Then, closing statements are given to the factfinder. Therefore, a criminal proceeding follows either of these forms
I. |
Prosecution's Opening Statement |
OR
II. |
Prosecution's Opening Statement |
The initial step in the prosecution's case is the calling and questioning of witnesses. This process is called direct examination. The defense next cross-examines the witness, usually regarding subjects which were raised on direct examination. When the defense completes its cross-examination, the prosecution is allowed a redirect examination of the witness concerning matters raised on cross-examination. Whenever a redirect examination is allowed, the defense has the right to recross-examination. This witness is then released and the magistrate requests the prosecution to either call another witness or rest its case. This process is repeated for each witness called by the prosecution.
After the prosecution has finished presenting its case, if the defense believes that case to be insufficient to prove each element of the offense beyond a reasonable doubt, the defense will move for a judgment of acquittal (i.e., a directed verdict of not guilty). The judge should then excuse the jury while both parties argue for or against the motion.
In ruling on a motion for a directed verdict, the trial judge is concerned with the existence of evidence, not its weight. State v. Bryant, 316 S.C. 216, 447 S.E.2d 852 (1994). The trial court must view the evidence in the light most favorable to the State, and should submit the case to the jury if there is any substantial evidence which reasonably tends to prove the guilt of the accused or from which guilt may be fairly and logically deduced. State v. Prince, 316 S.C. 57 , 447 S.E.2d 177 (1993). The judge is not deciding at this point whether the defendant is guilty or not guilty. He is only deciding whether the trial should stop or whether it should proceed.
If the motion for directed verdict is denied, the defense makes its opening statement, if it has not already done so, and then calls its first witness. The same procedure is followed with defense witnesses as was followed with the prosecution witnesses; direct examination, cross-examination, redirect and recross-examination. If the defendant chooses to testify, the same procedure is used with him as with all other witnesses. This process continues until the defense rests its case. Under Rule 607 of the South Carolina Rules of Evidence, the credibility of a witness may be attacked by any party, including the party calling the witness.
As a general rule, a party offering a witness vouches for his truthfulness and cannot cross-examine or impeach the witness. State v. Hamlet, 294 S.C. 77, 362 S.E.2d 644 (1987). However, a party may impeach his own witness if the witness is declared hostile. A witness should not be declared hostile except upon a showing of both actual surprise and harm. State v. Bendoly, 273 S.C. 47, 254 S.E.2d 287 (1979).
Once both parties have rested their cases, the prosecution may present rebuttal evidence to contradict the evidence for the defense. The prosecution may not, however, use this time to bolster its case by presenting evidence to fill any gaps in the proof of the crime. Direct examination, cross-examination, redirect and recross-examination are conducted as before.
During the trial, the judge should refrain from questioning the witnesses, unless the witness' response is ambiguous, in which case the judge may ask questions until the ambiguity is eliminated.
In a jury trial, after all the evidence has been presented, the defense will again move for a directed verdict of not guilty. The judge should use the reasonable man standard as discussed earlier to decide whether to grant the motion or deny it. Again the judge should excuse the jury while the motion is being argued. If the motion is denied, closing arguments begin.
Pursuant to common law, in cases in which the defendant does not introduce any evidence, the defendant has the right to the last closing argument. In cases in which a defendant introduces evidence of any kind, even through a prosecution witness, the prosecution has the final closing argument. However, in cases in which the State is entitled to the reply argument, there is no common law or codified rule as to whether the State must open in full on the law, or the facts, or both, or neither, and there is no rule governing the content of the State's reply argument. Currently, there is no rule governing the content and order of closing arguments in criminal cases in which a defendant introduces evidence, except for the “constitutional rule” that a defendant's right to due process cannot be violated at any stage of a trial. Consequently, trial judges must, on a case-by-case basis, ensure that a defendant's due process rights are not violated during the closing argument stage. In cases in which a defendant introduces evidence, trial judges clearly have the authority to require the prosecution to open in full on the facts and the law and have the authority to restrict the prosecution's reply argument to matters raised by the defense in closing. This authority remains in keeping with the trial judge's authority to ensure that a defendant's due process rights are not violated during a criminal trial. State v. Beaty, 423 S.C 26, 813 S.E.2d 502 (2018).
The magistrate or municipal judge then requests instructions for the jury from both the prosecution and the defense. After the magistrate or municipal judge instructs the jury regarding applicable law and procedure, the jury retires to deliberate.
In a non-jury trial, the defense will make a motion for a directed verdict of acquittal. The prosecution presents argues against the motion. The parties then present closing arguments. The magistrate or municipal judge then renders his verdict.
11. The Court's Instructions to the Jury
Following the argument to the jury, it is the duty of the magistrate or municipal judge to instruct or charge the jury as to the law involved in the case and as to the manner by which they are to reach the verdict. (S.C. Const., Art. V, Section 21).
Article V, §21 of the S.C. Constitution provides: "Judges shall not charge juries in respect to matters of fact, but shall declare the law." The basis of this constitutional provision is founded upon the concept of our system of justice that every person charged with a crime has the right to a fair and impartial trial and that such a trial may only be achieved with the neutrality of the trial judge. In the course of the trial of a criminal case, the trial judge must refrain from all comment which tends to indicate his opinion as to the weight or sufficiency of evidence, the credibility of witnesses, or the guilt of the accused, as to the controverted facts. State v. Kennedy, 272 S. C. 231, 250 S.E.2d 338 (1978); State v. Pruitt, 187 S. C. 58, 196 S. E. 371 (1938); S. C. Constitution, Art. 5, Sec. 21.
The instruction or charge may be broken down into several parts. The judge in the first part of the charge should clearly define the separate duties performed by the judge and the jury. Also, a discussion of the nature of the offense with which the defendant has been accused should be included. Examples of frequently-needed instructions follow:
a. Separate Duties Performed By Judge and Jury
Ladies and gentlemen of the jury, you have listened to the proceedings and the evidence in this case and it is now my duty to instruct you as to the law which applies to the facts in this case. The laws of the State of South Carolina do not permit me to comment on the facts in the case. You, as jurors, are the sole judges of the facts in the case; however, it is my duty
to give you the law and you must accept and apply the law as I give it to you and be guided thereby in your consideration and in your deliberation upon the evidence in the case.
Not only are you the sole judges of the facts in this case, but you, as a jury, are the sole and exclusive judges of the effect and value of the evidence in the case, as well as the credibility of all the witnesses who have testified in the case. It is for you to determine which witness or witnesses are recalling and truthfully relating what transpired at the time of the alleged commission of the crime, as described in the warrant.
To weigh the evidence, you must consider the credibility of the witnesses. You will apply the test of truthfulness, which you are accustomed to applying in your daily lives. You may consider the manner of testifying; the appearance of the witness upon the witness stand; the reasonableness of the testimony; the opportunity the witness had to see or hear; accuracy of memory; intelligence, interest and bias, if any; together with all the facts and circumstances surrounding the testimony.
You are the sole judges of the facts, the credibility of the witnesses and the weight of the evidence. You may believe or disbelieve all, or any part, of the testimony of any witness. It is your province to determine what testimony is worthy of belief and what testimony is not worthy of belief, according to the weight you assign to the testimony of each witness.
The defendant is charged by the State of South Carolina, under the warrant which I read to you at the beginning of this trial, with having violated Section _________ of the Code of Laws of South Carolina (or the common law) (or Ordinance No. _______ of the Town of ___________). This is the offense of having ______(explain in simple terms)_____.
There are two types of evidence from which a jury may properly find the truth as to the facts of a case. One is direct evidence - such as the testimony of an eye witness. The other is indirect or circumstantial evidence - the proof of a chain of circumstances pointing to the existence or non-existence of certain facts.
Before you can convict a defendant on circumstantial evidence, the circumstantial evidence must measure up to the requirements of the law. So, I charge you that where it is undertaken by the State in a criminal case to prove the guilt of the defendant by circumstantial evidence, not only must the circumstances be proven, but they must point conclusively to the guilt of the accused. They must be wholly and in every particular perfectly consistent with each other, and they must also be absolutely inconsistent with any other theory than that of the guilt of the accused.
The courts of this State have ruled, in cases of circumstantial evidence, that every circumstance which is relied upon by the State as material must be brought to the test of strict proof. All the facts proved must be consistent with each other, and taken together, should be of conclusive nature producing a reasonable and moral certainty that the defendant and no one else committed the offense charged. It is not enough that they created a probability, though a strong one; and assuming all the facts which the evidence tends to establish to be true, if there may yet be accounted for any theory which does not include the guilt of the defendant, then the proof fails.
The reason for this is that all presumptions of law, independent of evidence, are in favor of the innocent, and every person is presumed to be innocent until he is proved to be guilty. One cannot be convicted on suspicion however strong that suspicion might be.
A verdict of guilty can be based upon circumstantial evidence as safely as upon direct evidence, provided the circumstantial evidence relied upon to prove guilt measures up to these requirements of the law that I have just stated to you.
State v. Logan, 405 S.C. 83, 747 S.E.2d 444 (2013) requires that trial courts provide the following language as a circumstantial evidence charge, in addition to a proper reasonable doubt instruction, when so requested by a defendant:
There are two types of evidence which are generally presented during a trial; direct evidence and circumstantial evidence. Direct evidence directly proves the existence of a fact and does not require deduction. Circumstantial evidence is proof of a chain of facts and circumstances indicating the existence of a fact.
Crimes may be proven by circumstantial evidence. The law makes no distinction between the weight or value to be given to either direct or circumstantial evidence, however, to the extent the State relies on circumstantial evidence, all of the circumstances must be consistent with each other, and when taken together, point conclusively to the guilt of the accused beyond a reasonable doubt. If these circumstances merely portray the defendant's behavior as suspicious, the proof has failed.
The State has the burden of proving the defendant guilty beyond a reasonable doubt. This burden rests with the State regardless of whether the State relies on direct evidence, circumstantial evidence, or some combination of the two.
The law does not require any defendant to prove his or her innocence of a crime. On the contrary, the law requires the State to establish a defendant's guilt by legal evidence and beyond a reasonable doubt. The law presumes the defendant to be innocent of the charge made against him in the arrest warrant until his guilt has been proven beyond a reasonable doubt. The burden of overcoming this presumption of innocence is placed upon the State and rests upon the State throughout the trial until the State has satisfied you by evidence of the defendant's guilt beyond a reasonable doubt.
What is a reasonable doubt? A reasonable doubt is the kind of doubt that would cause a reasonable person to hesitate to act.
e. Failure of Defendant to Testify
The prosecution may not comment on or make any reference to the fact that the accused failed to testify in his own behalf. State v. Gunter, 286 S.C. 556, 335 S.E.2d 542 (1985).
Since the defendant may not wish to draw further attention to his failure to testify, the magistrate or municipal judge should give the defendant the option as to whether or not to read the following instruction.
The failure of any defendant to take the stand and testify in his own behalf does not create any presumption against him. I charge you that you must not permit this fact to weigh in the slightest against the defendant. Nor should this fact enter into the discussion or deliberation of the jury in any manner.
The magistrate or municipal judge should read the statute or common law involved in the case and explain it to the jury in simple terms.
Your verdict in this case will be one of two forms (an exception to this can be the traffic offense of speeding). If from the evidence and the law, you find that the defendant is not guilty, you will write "Not Guilty" on the back of the warrant and the foreman will sign his name. If on the other hand, you find that the defendant is guilty, based upon the evidence and the law which you have heard, you will write "Guilty" on the back of the warrant and the foreman will sign his name. Your verdict must be unanimous. It must be guilty or not guilty.
After the magistrate or municipal judge charges the jury as to the principles of law to be applied in determining the issues in the case, the jury retires to a private place for deliberations. The jury must be kept together while it deliberates. They must be kept away from the judge, the complainant, the defendant, the law enforcement officer, and all other persons. The magistrate or municipal judge or the constable or some law enforcement officer not involved in the case should take the jury to another room to deliberate free from external influence and distractions. The jurors should take the warrant with them, and at the discretion of the judge, they may take any items admitted in evidence during the trial. The jurors cannot take objects and papers with them which were not admitted as evidence. The jurors should not be permitted access to law books since they must follow the judge's instructions as to the legal principles in the case and not try to interpret the law themselves.
If the jury cannot reach a verdict within a reasonable time, the judge must decide whether to recall the jury and inquire whether there is a reasonable probability that it will reach a verdict. Although the judge cannot coerce or threaten the jury, he can encourage them to reconcile their differences by impressing upon them the importance of their reaching a verdict. He can point out the expense incurred by a mistrial and ask them to further consider the evidence. The jurors can be asked to give due consideration to their fellow jurors' opinions and to try to reach a verdict. A suggested charge to encourage the jury to reach a verdict follows:
It is sometimes difficult for six men and women to agree on any important issue, especially if it is controversial. Hence a jury would hardly be expected to reach an agreement without considerable reasoning together, laying aside all extraneous matters, and considering the various viewpoints and suggestions of the individual members, with an eye single to the truth. Therefore, it is your duty as jurors to consult with one another and to deliberate with a view to reaching an agreement, if you can do so without violence to your individual judgment.
You each must decide the case for yourself, but you should do so only after a consideration of the case with your fellow jurors. You should not hesitate to change your opinion when convinced that it is erroneous, but of course there should be no surrender of a well-considered conscientious opinion.
I am therefore going to ask you to return to your room and continue your deliberations in the hope that you may be able properly to agree on a verdict. I am confident that you will make a fair and honest effort to that end.
If during the deliberations, the jury wishes to have a part of the instructions repeated, the judge calls the jury back to the courtroom and with the defendant present, he can repeat or clarify whatever they wish. He can state the pertinent law again and then send the jury back for further deliberation. Trial courts have discretion as to whether to submit its instructions on the law to the jury in writing. Furthermore, a party disputing the submission of the written charge to the jury must show prejudice to obtain relief on this ground. State v. Turner, 373 S.C. 121, 644 S.E.2d 693 (2007). A trial court should use the practice sparingly and only when it will aid the jury and not prejudice the defendant. State v. Covert, 382 S.C. 205, 675 S.E.2d 740 (2009). It is never appropriate to give only part of the written charge to a jury. See also State v. Lemire , Op. No. 5177 (S.C. Ct. App. filed October 16, 2013).
If the jury cannot reach a verdict after deliberation, the judge must declare a mistrial and discharge the jury. Another trial can be scheduled by the judge.
When the jury reaches a verdict, it is written on the back of the warrant. The defendant is asked to stand and face the jury. The judge receives the verdict from the jury foreman and reads it aloud.
Where several counts have been alleged, the jury should find a decision on each count. Where several persons are tried together, the verdict must be specific as to each defendant. The jury can convict them all, acquit them all, or it can convict one or more and acquit the others.
a. General Sentencing Procedures
When a defendant is found guilty, either by the judge or a jury, the magistrate or municipal judge must then sentence the defendant. The judge may use his discretion in sentencing as long as his decision conforms with the statutory requirements for the particular offense for which the defendant has been convicted. He may impose a fine or require imprisonment, or both within the statutory limitations. (§22-3-550). Where a statute prescribes a minimum sentence, the magistrate or municipal judge may not impose a lesser sentence, except in the case of a conviction for drawing a fraudulent check. (§22-3-800). (See CRIMES AND OFFENSES, Fraudulent Checks). Of course, the magistrate or municipal judge may not exceed the statutory limits with any sentence. Where separate charges have been alleged and proven, the magistrate or municipal judge may impose sentences to run concurrently or consecutively. The sentences will be served concurrently unless the judge specifically orders them to be served consecutively. Finley v. State, 219 S.C. 278, 64 S.E.2d 881 (1951); State v. DeAngelis, 257 S.C. 44, 183 S.E.2d 906 (1971). §22-3-550 prohibits a magistrate from sentencing any person to consecutive terms of imprisonment totalling more than ninety days (except for convictions resulting from violations of Chapter 11 of Title 34, pertaining to fraudulent checks, or violations of §16-13-110(B)(1), relating to shoplifting).
If, upon conviction, a defendant is sentenced to a term of imprisonment for three months or less, the defendant is placed in the custody of the county (or municipality) in which he was sentenced. If the county (or municipality) has facilities suitable for confining the defendant, his sentence should be served in that county or municipality. Any defendant who receives a term of imprisonment from a court of competent jurisdiction exceeding ninety days is placed in the custody of the Department of Corrections, which will then designate the facility at which the defendant will be incarcerated.
In addition to any sentence imposed, a magistrate, pursuant to §22-3-550, may order a criminal defendant to make restitution to the victim of the crime for any monetary or property loss that resulted from the crime. Under subsection (A), a magistrate may order restitution in an amount not to exceed the civil jurisdiction of a magistrate, which is currently seven thousand five hundred ($7,500) dollars. "In determining the amount of restitution, the judge shall determine and itemize the actual amount of damage or loss in the order. In addition, the judge may set an appropriate payment schedule," and the "magistrate may hold a party in contempt for failure to pay the restitution ordered if the judge finds the party has the ability to pay." A magistrate may convert any unpaid restitution, fines, costs, fees, surcharges, and assessments to a civil judgment as provided in §17-25-323(C). This procedure is in the Memoranda section of the Bench Book under "Conversion of Criminal Fines and Restitution to Civil Judgment".
Although the trial judge is allowed broad discretion in conducting the restitution hearing, the statute contemplates an adversarial hearing to prove the amount of restitution. Therefore, under the due process clause of both the South Carolina Constitution and the United States Constitution, the defendant must receive notice of the hearing, and during the hearing, the defendant must be given the opportunity to be heard and to cross-examine the witnesses.
The magistrate's order of restitution may be appealed within thirty days. The order of restitution may be appealed separately from an appeal relating to the conviction. § 22-3-1000.
§14-25-65 provides that "a municipal judge may order restitution in an amount not to exceed the civil jurisdiction of magistrates court”, which is currently seven thousand five hundred ($7,500) dollars. In determining the amount of restitution, the judge shall determine and itemize the actual amount of damage or loss in the order." In addition, the judge may set an appropriate payment schedule." The municipal judge may also "hold a party in contempt for failure to pay the restitution ordered if the judge finds the party has the ability to pay." A municipal judge may convert any unpaid restitution, fines, costs, fees, surcharges, and assessments to a civil judgment as provided in §17-25-323(C). This procedure is in the Memoranda section of the Bench Book under "Conversion of Criminal Fines and Restitution to Civil Judgment".
In a sentencing proceeding, evidentiary rules are inapplicable. A restitution hearing is part of the sentencing proceeding and thus, the trial court may consider information which may be inadmissible under evidentiary rules. However, the admissibility of evidence is limited by constitutional provisions which require the evidence to be relevant, reliable and trustworthy. State v. Gulledge, 487 S.E.2d 590, 326 S.C. 220 (1997).The suspension of sentences is provided for in §22-3-800. At the time of sentencing, the magistrate or municipal judge may suspend the imposition or execution of a sentence "Upon such terms and conditions as he may deem appropriate, including imposing or suspending up to one hundred hours of community service, except where the amount of community service is established otherwise." With the exception of fraudulent check cases, which have a rather specialized sentencing procedure available, and penalties arising under Title 50, a sentence may not be suspended below the minimum sentence if one is provided. Community service may not be ordered in lieu of a sentence for offenses arising under Title 50, fraudulent check offenses (§34-11-90), or for an offense of driving under suspension (§56-1-460) when the person's driver's license was suspended pursuant to a driving under the influence conviction (§56-5-2990). The court is required to keep records on the community service hours ordered and served. § 22-3-800 also notes that the judge may not suspend any specific suspension of any rights or privileges, such as the prohibition from holding public office or suspension of a driver's license, as imposed under any statutory administrative penalty.
Some criminal offenses have suspension of sentence requirements incorporated into the statute that establishes the offense. For example, the fine for a first offense conviction of criminal domestic violence (§16-25-20(B)) may be suspended upon the offender completing, to the satisfaction of the court, a program designed to treat batterers. Reference should be made to each individual statute prior to sentencing to ensure there are no stipulations on your ability to suspend a sentence.
The suspension of sentence upon appropriate terms and conditions, if any, is generally unrestricted except, as noted above, that a sentence cannot be suspended below a minimum when such is provided by statute. In certain cases, a sentence involving a fine or imprisonment will benefit neither the state nor the defendant, and many courts use a suspended sentence to provide a more creative penalty for the crime. While the services of the state's probation officers are not available to the magistrate or municipal courts, the imposition of a sentence, in whole or in part, may be postponed (suspended) while a court waits to see if the defendant will perform certain terms or conditions.
A good example of the suspension of a sentence upon the performance of certain conditions is when a defendant is convicted of first offense of simple possession of marijuana and the sentence is suspended upon the defendant's successful completion of a specific drug abuse program. Failure to complete the program subjects the defendant to being called back to court on a bench warrant to pay the suspended portion of the sentence. Successful completion of the program relieves the defendant of the obligation to pay or serve that suspended portion.
First offense convictions of simple possession of marijuana or hashish (§44-53-370(c) and (d)(3)) provide a good example of the various suspension of sentence techniques available. The fine for the offense is not less than one hundred dollars ($100) nor more than two hundred dollars ($200); a defendant could be fined $200 with $100 being suspended upon completion of a drug abuse program. Failure to complete the program would subject the defendant to the 30-day imprisonment. Thus the defendant would have an even greater incentive for completing the drug abuse program. Persons charged with first offense simple possession might also participate in a drug abuse program as a part of pre-trial intervention (see CRIMINAL, Trial Procedure, PreTrial Intervention) or pursuant to a conditional discharge (see OFFENSES, Possession of Small Quantities of Marijuana or Hashish).
d.Conversion of Restitution or Criminal Fine to Civil Judgment
§17-25-323(C) provides that a magistrate or municipal judge, within one year of conviction and sentencing and upon default of payment by defendant, may convert any unpaid victim restitution or criminal fine (including assessments and surcharges) to a civil judgment, upon the Court’s own motion or upon motion of the victim, the victim’s representative, or the State. Please see the Memoranda Section of this book regarding the procedure of conversion of a criminal fine to a civil judgment.
e. Revocation or Suspension of Driver’s License
Anyone who forfeits bond, is convicted of, or pleads guilty or nolo contendere to an offense requiring their driver's license to be revoked or suspended must surrender his or her driver's license to the court. The clerk of court, magistrate, or municipal judge must transmit the driver's license to the Department of Public Safety within five days of receipt. Failure to comply within the five day period is punishable by a fine not to exceed five hundred dollars.
f. Offenses Requiring Revocation or Suspension of Driver's License
The following magistrate and municipal court offenses require the revocation or suspension of the convicted's driver's license:
Offense
Revocation or
Suspension ProvisionDUI 1st (56-5-2930, 56-5-2933)
56-5-2990
DUAC 1st (56-5-2933)
56-5-2933
Reckless Driving 2d+ (56-5-2920)
56-5-2920
All DUS offenses (Non DUI related) (56-1-460)
56-1-460
DUS 1st (DUI related) (56-1-460)
56-1-460
Operation, allowing operation uninsured vehicle, 1st (56-10-520)
56-10-520
False insurance certificate 1st (56-10-260)
56-10-260
Operation unlicensed taxi (58-23-1210)
56-1-290
DL or ID of another, lend or permit use 1st (56-1-510(2))
56-1-746
Fraud in Application for DL or ID (56-1-510(5))
56-1-746
DL or ID of another or false or altered, use of (56-1-515(2)(4))
56-1-746
False age information to purchase beer, wine (61-4-60)
56-1-746
Purchase beer, wine on behalf of underaged person (61-4-60)
56-1-746
Purchase, possession beer, wine by underaged person (63-19-2440)
56-1-746
Purchase, possession furnishing false age to purchase liquor by underaged person (63-19-2450)
56-1-746
** Failure to pay for Gasoline (16-13-185(B)) (SUSPENSION IS DISCRETIONARY WITH THE COURT)
56-1-292
Upon conviction, collect the driver's license. If the offense was charged on an Uniform Traffic Ticket, attach the license to the pink and yellow copies of the ticket and to the Transmittal Form (DL-76-B). For charges initiated on an ABC summons, attach the driver's license to the mustard copy of the summons and the transmittal form. For charges initiated on a DNR (Department of Natural Resources) ticket, attach the driver's license to the blue or gold copy of the ticket and the transmittal form. PLEASE NOTE: A certified, true copy of the ticket may be submitted if the blue or gold copy is not available. Use a separate form for cases brought by each arresting agency. Complete the transmittal form in quadruplicate, retain one copy for your files, and submit three copies to the Department of Public Safety. They will return copies to you to verify acceptance.
Any person convicted of any offense by a magistrate may appeal the sentence to the Court of Common Pleas for that county. (§18-3-10). The appellant shall file the notice of appeal with the clerk of the circuit court and shall serve notice of appeal upon the magistrate who tried the case and upon the designated agent for the prosecuting agency or attorney who prosecuted the case within ten days after sentencing and state the grounds for his appeal (§18-3-30). If a defendant makes a motion for a new trial within ten (10) days as provided in § 22-3-1000, and the motion is denied the time for appeal is extended to thirty days. § 22-3-1000 provides: "[A] motion for a new trial may not be heard unless made within ten days from the rendering of the judgment. The right of appeal from the judgment exists for thirty days after the rendering of the judgment. A magistrate's order of restitution may be appealed within thirty days. The order of restitution may be appealed separately from an appeal, if any, relating to the conviction."
Payment of any fine imposed by the magistrate will not bar an appeal. Appeal lies only from a final judgment of the magistrate, as opposed to an interlocutory order from which no appeal lies. Upon service of the notice of appeal on the magistrate, the magistrate shall admit the defendant to bail if he so demands. (§18-3-50).The conditions of bail are that the defendant appear at the court appealed to until final judgment is rendered, that he abide by this judgment and that he be of good behavior pending final disposition of the case.
When a defendant is convicted of an offense which requires suspension or revocation of his or her driver's license (see b. Offenses Requiring Revocation or Suspension of Drivers' Licenses under No. 13 Sentencing), and the defendant appeals the conviction, the appeal acts as a supersedeas and stays such suspension or revocation for 6 months. See § 56-1-430 which provides: "Upon conviction of an offense making mandatory the suspension or revocation of the driver's license of the person so convicted, an appeal taken from such conviction shall act as a supersedeas so as to preclude for a period of six months from the date of conviction, any such suspension or revocation." Under § 56-1-430, the stay is for only 6 months. "Prompt disposition of appeal required to set aside conviction. Defendant was charged with knowledge of the time limit imposed on the magistrate for filing the record and of the sixty-day supersedeas provided by this section and having failed to take any step toward effecting a prompt disposition of his appeal, he was not entitled to have his conviction set aside and the charges against him dismissed." State v. Adams. 244 S.C. 323, 137 S.E.2d 100 (S. C. 1964). See also Opinion No. 3681 of Attorney General dated January 2, 1974. "The failure of a magistrate or recorder to file a return so that the appeal can be heard does not entitle the defendant to a stay of license suspension or dismissal of the charge. His remedy is to apply for an order of mandamus to require the trial judge to file the return." 1974 S.C. Op. Atty. Gen. 12. "Appeal from a conviction of reckless homicide stays suspension of the defendant's driver's license for sixty days only." 1965-66 Ops. Att'y. Gen., No. 2116, p 226.
The magistrate is required to file a copy of the notice of appeal with the clerk of court within ten days of service, together with the record, a statement of all the proceedings in the case, a list of the witnesses and the substance of their testimony, taken at the trial as provided in §22-3-790. (§18-3-40). The clerk then places the case upon the motion calendar of the Court of Common Pleas. (§18-3-60). The appeal is not "de novo." That is, the appeal is heard on the grounds of exceptions and the record of the magistrate without the examination of the witnesses. The circuit court will affirm, reverse, or modify the magistrate's sentence as it sees fit. § 18-3-70. However, if the circuit court finds the magistrate's return to be inadequate, the circuit court judge may direct the magistrate to do an amended return, and may do so as often as may be necessary. The circuit court judge may also compel the magistrate to comply with his or her order. § 18-7-80. See also: Chapman v. Computers, Parts & Repairs, 334 S.C. 387, 513 S.E.2d 120 (Ct. App. 1999).
Any person convicted of any offense by a municipal court may appeal the sentence to the Court of Common Pleas. (§14-25-95). The appellant must serve the notice of intention to appeal upon the municipal judge or the clerk of the municipal court within ten days of sentencing and state the grounds for his appeal. If a defendant makes a motion for a new trial within ten (10) days as provided in § 22-3-1000, and the motion is denied, the time for appeal is extended to thirty days. § 22-3-1000 provides: "[A] motion for a new trial may not be heard unless made within ten days from the rendering of the judgment. The right of appeal from the judgment exists for thirty days after the rendering of the judgment." A judge's "order of restitution may be appealed within thirty days. The order of restitution may be appealed separately from an appeal, if any, relating to the conviction."
Payment of any fine imposed by the municipal court will not bar an appeal. Appeal lies only from final judgment of the court, as opposed to an interlocutory order, from which no appeal lies. Upon service of the notice of intention to appeal on the municipal judge or clerk of the municipal court, the municipal court shall admit the defendant to bail. The conditions of bail are that the defendant appear and defend at the next term of the Court of Common Pleas or pay the fine assessed. § 14-25-95.
When a defendant is convicted of an offense which requires suspension or revocation of his or her driver's license (see b. Offenses Requiring Revocation or Suspension of Drivers' Licenses under No. 13 Sentencing), and the defendant appeals the conviction, the appeal acts as a supersedeas and says such suspension or revocation for 6 months. See § 56-1-430 which provides: "Upon conviction of an offense making mandatory the suspension or revocation of the driver's license of the person so convicted, an appeal taken from such conviction shall act as a supersedeas so as to preclude for a period of six months from the date of conviction, any such suspension or revocation." Under § 56-1-430, the stay is for only 6 months. "Prompt disposition of appeal required to set aside conviction. Defendant was charged with knowledge of the time limit imposed on the magistrate [municipal judge] for filing the record and of the sixty-day supersedeas provided by this section [Code 1962 Section 46-189] (now § 56-1-430) and having failed to take any step toward effecting a prompt disposition of his appeal, he was not entitled to have his conviction set aside and the charges against him dismissed." State v. Adams, 244 S.C. 323, 137 S.E.2d 100 (S.C. 1964). See also Opinion No. 3681 of AttorneyGeneral dated January 2, 1974. "The failure of a magistrate or recorder to file a return so that the appeal can be heard does not entitle the defendant to a stay of license suspension or dismissal of the charge. His remedy is to apply for an order of mandamus to require the trial judge to file the return." 1974 S.C. Op. Atty. Gen. 12. "Appeal from a conviction of reckless homicide stays suspension of the defendant's driver's license for sixty days only." 1965-99 Ops. Att'y. Gen., No. 2116, p 226.
The municipal court judge is required to make a return to the Court of Common Pleas, consisting of a written report of the charges, the proceedings, a list of the witnesses, the substance of their testimony, and the sentence of judgment. When the testimony has been taken by a reporter, the return shall include the reporter's transcript of the testimony. The return shall be filed with the Clerk of Court of Common Pleas of the county in which the trial was held. The Clerk of Court of Common Pleas then places the case on the motion calendar. The appeal is not "de novo." That is, the appeal is heard on the grounds of exceptions and the record of the municipal court without examination of witnesses. The circuit court will affirm, reverse, or modify the sentence of the municipal court as it deems fit. However, if the circuit court finds the municipal judge's return to be inadequate, the circuit court judge may direct the municipal judge to do an amended return, and may do so as often as may be necessary. The circuit court judge may also compel the municipal judge to comply with his or her order. § 18-7-80.
The procedure for expungements in this State previously required that all petitions for expungement of criminal records be initiated in the Solicitor's Office in the circuit where the charge arose. Those petitions were directed to circuit court judges, who signed all orders of expungements regardless of the court in which the case arose.
State law now provides for the expungement of criminal records in both the circuit and summary courts. §§ 17-22-950 requires that the summary courts expunge the records of criminal cases disposed in those courts when an accused person is found not guilty or the charges are dismissed, or nolle prossed. However, there are exceptions to this rule. The charges are not eligible for expungement if:
- the charge is not eligible for expungement if the charge was dismissed at a preliminary hearing, or
- the accused person has charges pending in summary court and the court of general sessions and such charges arise out of the same course of event.
The statute requires that no fee may be charged by the summary court for the expungements pursuant to §§ 17-22-950. Please be advised that charges pursuant to those statutes are the only allowance for expungements to be conducted by summary court judges.
All other expungements are processed through the Solicitor's Office and signed by a circuit court judge. More information on circuit court expungements is provided at 15 (A) below. The process for expunging magistrate and municipal court cases is provided at 15 (B) below.
a. Expungement of criminal records in the circuit court.
§ 17-22-910 et seq. provides that the Solicitor’s Office is responsible for processing expungements of the following charges for ultimate approval by a circuit court judge.
- §17-1-40 which provides for the sealing or destruction of all booking reports and arrest records when an individual is acquitted of criminal charges or the charges are discharged, dismissed, or nol prossed in the Court of General Sessions. No fee may be charged a defendant for criminal records expunged pursuant to § 17-1-40. In all other Expungements in the Circuit Court, solicitors are statutorily authorized to collect a $250 fee.
- §17-22-150(a) provides for the destruction of all official records relating to the arrest or charge when an individual successfully completes the pretrial intervention program. This would include those cases arising in the summary court and admitted into pretrial intervention.
- §17-22-330 provides for the expungement of cases arising in the summary courts and referred to the Solicitor's Traffic Education Programs, where the defendant successfully completes the program.
- §17-22-530 provides for the expungement of cases arising in the summary courts and referred to the Solicitor's Alcohol Education Programs, where the defendant successfully completes the program.
- § 34-11-90(e) allows for the expungement of a first offense misdemeanor fraudulent check conviction if no additional criminal conviction has taken place in one year from the date of conviction.
- § 44-53-450(b) allows the expungement of specified drug offenses, including simple possession of marijuana or hashish conviction, after successful completion of the terms of a conditional discharge.
- § 22-5-910 allows a defendant who has been convicted of a first offense carrying a penalty of not more than thirty days imprisonment or a fine of $1000 in summary court or general sessions court to apply to the circuit court for an order expunging all records pertaining to the arrest and conviction. The defendant must wait three years from the date of conviction (five years in the case of a first offense domestic violence conviction) and receive no other convictions during that period before applying to the circuit court.
- § 22-5-920 allows the expungement of a conviction for a first offense as a youthful offender.
- § 56-5-750(f) provides for the expungement of a first offense misdemeanor conviction for failure to stop for a blue light.
Summary Court Judges’ Responsibilities In Expungements Ordered by the Circuit Court: Summary court judges are required to verify convictions obtained in those courts when records are sought to be expunged pursuant to § 34-11-90(e) (first offense fraudulent check), § 22-5-910 (summary court conviction), or § 44-53-450(b) (conditional discharge). Upon receipt of an application for expungement from the Solicitor's Office, the summary court judge must verify that the charge was adjudicated in that court and, if pertinent, the trial date. Although SLED is required to verify the defendant's criminal record, it may be prudent for the summary court judge to verify that no other convictions against that individual had been obtained in that court. Additionally, in the case of conditional discharges, that summary court judge must verify that the terms and conditions of the discharge were met. Verification is memorialized by the summary court judge's signature on the application for expungement. The application is then returned to the Solicitor's Office.
When a signed order of the circuit court is received by a summary court requiring the expungement of criminal records, all records pertaining to the case named in the order must be destroyed, including any related to bench warrants. All identifying references on the docket sheet, warrant stub, and receipt concerning the case should be obliterated and a reference to the order entered. The common practice of courts sealing the records and maintaining them in a location accessible only to the office staff is not appropriate. Finally, any notations referencing the case on an Internet-based public index shall be deleted. The case number and receipt number, if applicable, should be recorded on the order of expungement in case future reference to that case number is necessary. The order of expungement should be maintained in a locked file accessible to only the judge.
b. (1). Summary Court Expungement Process as Required by 17-22-950(A) Where Defendant Is Fingerprinted.
- A criminal charge where the accused person is found not guilty or the charges are dismissed or nolle prossed and the accused person was fingerprinted for the charges, the summary court, at no cost to the accused person, immediately shall issue an order to expunge the criminal records, including any associated bench warrants, of the accused person. The automatic expungement is required regardless of the type of charging document used to initiate the charge, including courtesy summonses. However, there are two exceptions to this expungement rule:
- Charges should not be expunged if the dismissal occurs at a preliminary hearing, or
- If the accused person has charges pending in summary court and a court of general sessions and such charges arose out of the same course of events.
- Immediately upon a disposition of not guilty, dismissed or nolle prossed, the court should complete the Order for Expungement of Arrest Records (Magistrate and Municipal Court), SCCA 223C. Each order should contain only one charge sought to be expunged, except in those circumstances where expungement is sought for multiple charges occurring out of a single incident.
- The summary court judge should not sign or date the form at this time. Obtain the signature of the prosecuting attorney or law enforcement officer on the bottom of the form. (The purpose of this signature is simply to verify the disposition. By signing, the attorney or officer is not indicating that he or she agrees with the disposition.)
- If an appeal is filed in the case, the expungement process should be stopped pending the outcome of the appeal.
- The statute provides that the prosecuting agency or appropriate law enforcement agency may object in writing to the expungement within 30 days of the disposition. However, statutory reasons for an objection are limited to the following:
- The accused has other charges pending;
- The charges are not eligible for expungement.
- If a written objection is filed with the trial court, the prosecuting or law enforcement agency shall notify the accused person of the objection in writing at the most current address on file with the trial court, or through the accused person's attorney.
- In the event that there is a written objection filed, the court must forward the record, including the written objection, to the circuit court with SCCA Form 223D, Expungement Abjection Transmittal. The circuit court judge will determine whether the defendant is entitled to have the record expunged. The circuit court judge will indicate on Form 223D whether or not the record will be expunged, and return that form to the summary court. If the Circuit Court determines that the record should be expunged, the summary court will be responsible for completing the expungement process. See §17-22-950(F).
- In the event no written objection is filed with your court, the trial judge should sign and date the order no sooner than 31 days after disposition, and no later than 40 days after disposition. The court must attach a copy of the disposition to the expungement order and forward certified copies of the order and disposition to the following agencies.
- SLED via the US Mail at the following: Mary Porter, PO Box 21398, Columbia, SC 29221.
- The appropriate law enforcement agency which handled the case. (Your court will need to coordinate with your local law enforcement agencies in order to obtain information concerning to whose attention to send the expungement orders and by what method of transmittal, such as the US Mail, facsimile, etc.) In the event the charges were initiated by a courtesy summons, law enforcement should still receive the order.
- The prosecuting agency if prosecuted by an agency other than the arresting law enforcement agency.
- The appropriate detention facility. If the initiating document was a courtesy summons, the detention facility need not receive the order.
- If a traffic case, the order and disposition must be sent to DMV to the attention Shirley Rivers, Post Office Box 1498, Blythewood, SC 29016.
- If a DNR case, the order and disposition must be sent to Lt. Mike Sabaka. This may be done electronically at sabakam@dnr.sc.gov or via facsimile at 803-734-3962.
- The defendant’s lawyer, if represented, or the defendant. This copy must be certified or marked with the court's raised seal.
- The county Clerk of Court, but only in cases in which the charges were appealed to the circuit court or remanded to the summary court from general sessions court. No filing fee shall be charged by the Clerk’s Office to a defendant seeking the expungement of a criminal record pursuant to §17-22-950, where the charge was dismissed, nolle prossed, or the defendant was found not guilty.
- Any other summary court that was involved in the processing of the case.
The court should then expunge their records as they normally would, including any related bench warrant. Finally, any notations of the charge on an internet-based public index must be deleted no later than 30 days from the disposition date.
b. (2). Summary Court Expungement Process as Required by 17-22-950(B) Where defendant Was Not Fingerprinted
- A defendant who was found not guilty or the charges were dismissed or nolle prossed in the summary court and the defendant was not fingerprinted for the charges must apply to the summary court for expungement of records. The statute applies regardless of the type of charging document used to initiate the charge, including courtesy summonses. The defendant may apply to the summary court, at no cost to the defendant, for an order to expunge the criminal records, including any associated bench warrants. However, there are two exceptions to this expungement requirement:
- Charges should not be expunged if the dismissal occurs at a preliminary hearing, or
- If the accused person has charges pending in summary court and a court of general sessions and such charges arose out of the same course of events.
- The defendant shall use the Application for Expungement (SCCA 223E) to apply for an expungement pursuant to Section 17-22-950(B).
- Upon application, and after verification that the charges are appropriate for expungement, the summary court shall issue an order to expunge the criminal records (SCCA 223C), and obtain and verify all necessary signatures.
- If an appeal is filed in the case, the expungement process should stop pending the outcome of the appeal.
- The statute provides that the prosecuting agency or appropriate law enforcement agency may object in writing to the expungement within 30 days of the disposition. However, statutory reasons for an objection are limited to the following:
- The accused has other charges pending;
- The charges are not eligible for expungement.
- Objections: In the event that there is a written objection filed the court must forward the record, including the written objection, to the circuit court with SCCA Form 223D. The circuit court judge will determine whether the defendant is entitled to have the record expunged, complete the form indicating whether or not the record will be expunged, and return that form to the summary court. If the Circuit Court determines that the record should be expunged, the summary court will be responsible for completing the expungement process. The summary court should follow the directive of the circuit court. See 17-22-950(F).
- In the event no written objection is filed with your court, the trial judge should sign and date the order no sooner than 31 days after disposition, and no later than 40 days after disposition. The court must then attach a copy of the disposition to the expungement order and forward certified copies of the order and disposition to the following agencies.
- The appropriate law enforcement agency which handled the case. (Your court will need to coordinate with your local law enforcement agencies in order to obtain information concerning to whose attention to send the expungement orders and by what method of transmittal, such as the US Mail, facsimile, etc.) In the event the charges were initiated by a courtesy summons, law enforcement should still be provided with the order.
- The prosecuting agency if prosecuted by an agency other than the arresting law enforcement agency.
- If a traffic case, the order and disposition must be sent to DMV to the attention of Shirley Rivers, Post Office Box 1498, Blythewood, SC 29016.
- If a DNR case, the order and disposition must be sent to Lt. Mike Sabaka. This may be done electronically at sabakam@dnr.sc.gov or via facsimile at 803-734-3962.
- The defendant’s lawyer, if represented, or the defendant. This copy must be certified or marked with the court's raised seal.
- The county Clerk of Court, but only in cases in which the charges were appealed or the circuit court or remanded to the summary court from general sessions court. No filing fee shall be charged by the Clerk’s Office to a defendant seeking the expungement of a criminal record pursuant to Section 17-22-950. Any other summary court that was involved in the processing of the case.
The court should then expunge their records as they normally would, including any related bench warrant. Criminal charges must be removed from any internet-based public record no later than 30 days from the disposition date, regardless of whether the accused person applies to the summary court for expungement pursuant to §17-22-950(B).
b. (3) Expungement of Charges Where the Accused Was Found Not Guilty, Or the Charges Were Dismissed or Nolle Prossed Prior to the Effective Date of the Summary Court Expungement Legislation
- Act No. 132 of 2016, which amended §17-22-950, provided that the expungement process be applied retroactively. Therefore, charges in which the person accused was found not guilty, or the charges were dismissed or nolle prossed prior to the effective date of the summary court expungement legislation shall be expunged by the summary courts upon application of the defendant, regardless of whether the charges were fingerprinted or non-fingerprinted at the time of arrest. The defendant must initiate this process by completing and submitting to the trial court SCCA 223E, Application for Expungement. Upon application, and after verification that the charges are appropriate for expungement, the summary court shall issue an order to expunge the criminal records, obtain and verify all necessary signatures, and provide copies of the completed expungement order to the arresting law enforcement agency and all summary courts that were involved in the criminal process of the charges. If the defendant was fingerprinted for the charge, the summary court must provide a copy of the expungement order to SLED. If the defendant was not fingerprinted for the charge, the summary court is not required to provide copies of the completed expungement order to SLED.
- Expungement orders should not be forwarded to the Clerk of Court unless the charges were appealed from the summary court to the circuit court or remanded to the summary court from general sessions court.
- There is no waiting period for processing the expungement of charges that occurred prior to the expungement legislation and are now eligible for expungement. The summary court expungement process must begin upon the application for expungement.
NOTE: In regards to expunged records, pursuant to §17-1-40(B)(1)(a), law enforcement and prosecution agencies shall retain the arrest and booking record, associated bench warrants, mug shots, and fingerprints of the person under seal for three years and one hundred twenty days. A law enforcement or prosecution agency may retain the information indefinitely for purposes of ongoing or future investigations and prosecution of the offense, administrative hearings, and to defend the agency and the agency's employees during litigation proceedings. The information must remain under seal. The information is not a public document and is exempt from disclosure, except by court order. Pursuant to §17-1-40(B)(1)(b), detention and correctional facilities shall retain booking records, identifying documentation and materials, and other institutional reports and files under seal, on all persons who have been processed, detained, or incarcerated, for a period not to exceed three years and one hundred twenty days from the date of the expungement order to manage the facilities' statistical and professional information needs, and to defend the facilities and the facilities' employees during litigation proceedings, except that when an action, complaint, or inquiry has been initiated, the records, documentations and materials, and other reports and files may be retained as needed to address the action, complaint, or inquiry. The information is not a public document and is exempt from disclosure, except by court order. At the end of the three years and one hundred twenty days from the date of the expungement order, the records must be destroyed unless they are being retained to address an action, complaint, or inquiry that has been initiated.