South Carolina Court Administration

South Carolina Supreme Court
Columbia, South Carolina

MEMORANDUM

Below is an outline of the procedures discussed at the Mandatory Program on November 1st, 2017. These procedures are in accordance with Chief Justice Beatty's September 15th, 2017 memorandum regarding sentencing unrepresented defendants to imprisonment. That memorandum is attached for your reference. Also attached are the following updated or created forms to be used with this process, as well as the Chief Justice's Orders of approval of the forms:

• SCCA/507A  -  Checklist for Magistrates and Municipal Judges
• SCCA/507B  -  Information Regarding Your Rights
• SCCA/519  -  Summary Court Summons
• SCCA/520  -  Notice of Trial in Absentia
• SCCA/521  -  Notice of Defendant's Rights
• SCCA/522  -  Bench Warrant after Trial in Absentia
• SCCA/523  -  Bench Warrant after Failure to Appear

The procedures below are solely for defendants that are unrepresented by counsel and fail to appear on their court dates. If the defendant appears, they can be represented by counsel or the court may obtain a valid waiver of the right to counsel on the record. If a defendant appears in court with counsel, or waives their right to counsel, and is convicted, the defendant may be sentenced as prescribed by the charge convicted of, to include imprisonment if applicable.

For those courts who are on the S.C. Judicial Department's Case Management System, please note CMS will provide specific instructions on the business processing of trials in absentia upon the system's update, which is scheduled to be available for those courts on CMS by April 11, 2018. Please use the attached forms until the documents are implemented into CMS. For those courts that are not on CMS, please provide this memorandum and forms to your case management provider for implementation into their case management systems.

1. If the citation has been paid in full before the court date
   1. Case is disposed as Forfeit Bond
   2. Case is reported to DMV at the end of the day and reported to SLED at the end of the month
2. If the citation has not been paid before the court date
   1. Trial in absentia
      1. REMINDER: State must still prove case. Defendant is not to be automatically found guilty solely because he did not come to court.
      2. Defendant must have had notice of court date and that it would go forward without his presence (information on UTT)
   2. If Defendant is found guilty, case is disposed as TIA Guilty Bench Trial
   3. If Defendant is found not guilty, case is disposed as usual
   4. Case is reported to DMV at the end of the day
   5. Court generates NRVC and mails to Defendant
      1. Defendant pays NRVC before court sends the NRVC to DMV
         1. Case is reported to SLED at the end of the month
      2. If Defendant does not pay, court sends NRVC to DMV and case is reported to SLED at the end of the month
         1. Defendant pays and court gives Defendant copy for DMV
         2. Defendant does not pay and DMV suspends license
            1. Defendant then pays and court gives Defendant copy for DMV

1. Field Booking/Field Arrest
   1. Defendant is issued ticket and told to come to court on a specific day
   2. Defendant did not have a bond hearing
   3. If Defendant does not appear, court can TIA defendant, but the sentence can only be a fine. No jail, no suspended sentence.
      1. If the court is not willing to do fine only, Defendant MUST be rescheduled for another court date and informed of his right to counsel. Not TIA.
2. Trial in Absentia
   1. REMINDER: State must still prove case. Defendant is not to be automatically found guilty solely because he did not come to court.
   2. Defendant must have had notice of court date and that it would go forward without his presence (information on UTT)
   3. If Defendant is found not guilty, case is disposed as usual
   4. If Defendant is found guilty, case is disposed as TIA. Disposition is sent to DMV and SLED.
      1. Defendant notified of TIA via court Notice of Trial in Absentia
      2. Case appears on public index as TIA - fine amount will be visible on public index
      3. Defendant can pay online, in person, or mail - case is complete.
   5. After Conviction at TIA
      1. Defendant can request a post-trial hearing on the merits of the case, the amount of the fine, and his right to STP.
      2. Notice of Trial in Absentia (SCCA/520) will inform the Defendant of these rights.
      3. Defendant must contact the court to arrange a hearing to establish a payment plan.
      4. Defendant will not be arrested or required to pay anything at this hearing.
   6. Scheduled Time Payments (STP) - §17-25-350
      1. In any offense carrying a fine or imprisonment, the judge or magistrate hearing the case shall, upon a decision of guilty of the accused being determined and it being established that he is indigent at that time, set up a reasonable payment schedule for the payment of such fine, taking into consideration the income, dependents and necessities of life of the individual.
      2. Such payments shall be made to the magistrate or clerk of court as the case may be until such fine is paid in full.
      3. Failure to comply with the payment schedule shall constitute contempt of court; however, imprisonment for contempt may not exceed the amount of time of the original sentence, and where part of the fine has been paid the imprisonment cannot exceed the remaining pro rata portion of the sentence. NOT APPLICABLE IN THIS SITUATION - THERE IS NO UNDERLYING JAIL TIME .
      4. No person found to be indigent shall be imprisoned because of inability to pay the fine in full at the time of conviction.
      5. Entitlement to free counsel shall not be determinative as to defendant's indigency.
   7. Remedy for Nonpayment
      1. Not imprisonment! No issuance of a bench warrant or rule to show cause!
      2. Refer the matter to the Department of Revenue/Set Off Debt.
      3. Conversion of unpaid criminal fines, surcharges, assessments, costs, fees, and/or restitution to a civil judgment within one year of the imposition of sentence - §17-25-323(C)
         1. Applicable to both magistrate and municipal courts
         2. Procedure in the memos section of the Bench Book (Memo dated November 18, 2013)
   8. This procedure applies to:
      1. UTTs where Defendant was not taken into custody and did not have a bond hearing
      2. Zoning violations
      3. Animal control
      4. City/county ordinance summonses
      5. Courtesy summonses
      6. If you want to incarcerate a Defendant in one of the above situations, he must be rescheduled and informed of his right to counsel. No TIA unless Defendant has waived counsel by conduct or affirmative waiver.

1. Main Issue
   1. Defendants cannot be sentenced to jail time without being appointed, or waiving, counsel.
      1. This procedure may provide the possibility of the defendant waiving his right to counsel.
2. Bond Hearing
   1. The Bond Checklist (SCCA/507A) has been updated
      1. After the judge goes through the checklist with the Defendant, the Defendant will acknowledge receiving his rights by initialing the designated areas on the checklist and signing the document.
         1. If the Defendant refuses to initial and sign the checklist, the bonding judge should so indicate on the document, but it would still be considered that the defendant received his right to counsel.
   2. If indigent, Defendant shall be given instructions on how to apply for counsel
   3. Defendant will be given trial date
   4. Defendant will be given new form "Information Regarding Your Rights" (SCCA/507B)
   5. All forms direct that as a condition of bond the Defendant is required to update the court of any change of address

• Trial Date - Defendant fails to appear

1. Options
   1. Reschedule
   2. Bench warrant for bond violation (§17-15-40)
2. Reschedule
   1. Preferred method
      1. Policy underlying the Chief Justice's September 15, 2017 memo is to keep people out of jail unless their right to counsel is honored or waived.
   2. Defendant is sent the Summary Court Summons to Reschedule (SCCA/519) and Notice of Defendant's Rights (SCCA/521)
   3. Summons and the enclosure informs Defendant of possible TIA and waiver of right to counsel
   4. Gives Defendant new court date
   5. Can also be used in the Field Arrest procedure
3. Bench Warrant for Bond Violation (SCCA/523)
   1. To be used in the judge's discretion
      1. Consider whether Defendant is a danger to the community and/or if the charge carries a mandatory jail sentence
      2. Policy underlying the Chief Justice's September 15, 2017 memo is to keep people out of jail unless their right to counsel is honored or waived.
      3. To be used sparingly - not meant to be the primary means of getting Defendant into court if he misses his first court date
   2. Issue for bond violation for failure to appear, not the underlying offense
   3. Notify surety if applicable (§38-53-70)
   4. Bench warrant states Defendant is to be brought before the judge within a reasonable time
      1. Sole purpose of the bench warrant is to direct law enforcement to bring the Defendant before the issuing court ASAP
   5. Bench warrant will be amended to no longer contain any disposition/sentence
   6. Bench warrant is not a jail commitment
4. When Defendant is Picked Up on Bench Warrant for Failure to Appear
   1. If trial court is in session, take Defendant before that judge
      1. If not, bring Defendant before bond judge within 24 hours of arrest
   2. At hearing:
      1. Inform Defendant of indigent right to counsel
      2. Renew constitutional rights
      3. Personally serve Defendant with summons with new trial date
         1. Coordinate with trial court to determine trial date - can be done through phone calls or email
      4. Release on original bond if possible
5. Second Failure to Appear
   1. If Defendant fails to appear a second time, TIA
      1. Judge must determine on the record if:
         1. Defendant received proper notice of trial's time and place,
         2. Defendant was warned trial would proceed in his absence, AND
         3. Defendant waived his right to counsel by conduct
      2. REMINDER: State must still prove case. Defendant is not to be automatically found guilty solely because he did not come to court.
      3. If Defendant is found guilty, seal the sentence
         1. No sentence is issued orally on the record.
         2. Sealed sentence is required by law. It is not opened until Defendant is brought before the court.
      4. No sentence or money appears on the public index.
6. Sealed Sentence
   1. Notify Defendant of TIA and the existence of the sealed sentence by mail. Defendant will have to appear before the court to have sentence unsealed. OR
   2. Issue bench warrant to have Defendant brought before the court for opening of sealed sentence. (SCCA/522)
7. State v. Smith, 276 S.C. 494, 280 S.E.2d 200 (1981)
   1. A sealed sentence does not become the judgment of the court until it is opened and read to the defendant.
   2. Judge that opens the sentence is the sentencing judge under the law
   3. The authority to change a sentence rests solely and exclusively in the hands of the sentencing judge within the exercise of his discretion.
   4. It is an equal abuse of discretion to refuse to exercise discretionary authority when it is warranted as it is to exercise the discretion improperly.
   5. The mere recital of the discretionary decision is not sufficient to bring into operation a determination that discretion was exercised.
      1. It should be stated on what basis the discretion was exercised.

• Notification of Sealed Sentence by Mail

1. Defendant calls and sets up date for sentencing hearing
2. State and Victim must be notified of date of hearing
3. Sentence is opened/unsealed

• When Defendant is Picked Up on Bench Warrant for Sentencing

1. If trial court is in session, take Defendant before that judge.
   1. If not, bring Defendant before bond judge within 24 hours of arrest - opening of sentence may be delayed a reasonable amount of time to notify state and allow Victim to attend court
2. Open/unseal sentence
3. IMPORTANT: If there is a victim in the case, victims' rights statutes must be complied with. Victim must be notified and has a right to be present.

1. To be used in all types of cases where a fine is imposed - field arrests and custodial arrests
2. §22-3-800 Suspension of Imposition or Execution of Sentence in Certain Cases
   1. Notwithstanding the limitations of §17-25-100 and §24-21-410, after a conviction or plea for an offense within a magistrate's jurisdiction the magistrate at the time of sentence may suspend the imposition or execution of a sentence upon terms and conditions the magistrate considers appropriate, including imposing or suspending up to 100 hours of community service, except where the amount of community service is established otherwise (examples: littering and DUI)
   2. The magistrate shall not order community service in lieu of a sentence for offenses under Title 50, for offenses under §34-11-90, or for an offense of driving under suspension pursuant to §56-1-460 when the person's driver's license was suspended pursuant to the provisions of §56-5-2990.
   3. The magistrate must keep records on the community service hours ordered and served for each sentence.
   4. However, after a conviction or plea for drawing and uttering a fraudulent check or other instrument in violation of §34-11-60 within the magistrate's jurisdiction, at the time of sentence the magistrate may suspend the imposition or execution of a sentence only upon a showing of satisfactory proof of restitution.
   5. When a minimum sentence is provided for by statute, except in §34-11-90, the magistrate may not suspend that sentence below the minimum sentence provided, and penalties under Title 50 may not be suspended to an amount less than $25 unless the minimum penalty is a fine of less than that amount.
   6. Nothing in this section may be construed to authorize or empower a magistrate to suspend a specific suspension of a right or privilege imposed under a statutory administrative penalty.
   7. Nothing in this section may be construed to give a magistrate the right to place a person on probation.
3. §14-25-75 Judge May Suspend Sentences
   1. Any municipal judge may suspend sentences imposed by him upon such terms and conditions as he deems proper including, without limitation, restitution or public service employment.
4. After Sentencing
   1. If after trial, Defendant has a jail sentence suspended upon payment of fine and Defendant does not pay the fine, the court must perform Bearden v. Georgia, 461 U.S. 660 (1983) analysis.
5. Bearden v. Georgia, 461 U.S. 660 (1983)
   1. Courts may not ordinarily incarcerate an individual for nonpayment of a court-ordered legal financial obligation unless the court:
      1. Holds a hearing;
      2. Makes a finding that the failure to pay was willful and not due to an inability to pay; and
      3. Considers alternative measures other than imprisonment
   2. We recommend issuing a Rule to Show Cause (RTSC must be personally served - can attempt to mail RTSC first, but that is not deemed proper service if Defendant does not appear) to have the Defendant brought before the court. At the hearing, the defendant must be given a meaningful opportunity to explain:
      1. Whether the amount allegedly owed is incorrect and
      2. The reason(s) for any nonpayment, including an inability to pay.
   3. In determining whether the individual has shown an inability to pay, you should consider not only whether his net income is at or below the current Federal Poverty Guidelines, but also whether any of his income is derived from needs-based, means-tested public assistance, whether he has dependents, and the necessities of life of the individual.
   4. Consideration should also be given to whether the individual is homeless, incarcerated, or resides in a mental health facility, whether there are permanent or temporary limitations on the individual's ability to earn more money, and whether the person owes other court-ordered legal financial obligations.
   5. Be sensitive to the fact that the individual may have a constitutional right to counsel if a deferred sentence is likely to be imposed or the inability to pay defense is difficult to develop or present.
   6. After hearing the evidence, you should make findings on the record that the individual received adequate prior notice of: the hearing date/time; that failure to pay fines and assessments was the issue; the defense of inability to pay; the opportunity to bring documents and other evidence of inability to pay; and that there was a meaningful opportunity to explain the failure to pay.
   7. If you determine that incarceration must be imposed, you should make findings regarding:
      1. The financial resources relied upon to conclude the nonpayment was willful; and/or
      2. Why alternative measures are not adequate to meet the State's interest in punishment and deterrence under the particular circumstances.

Previously Issued Bench Warrants
If the court has recalled previously issued bench warrants to evaluate the constitutionality of their issuance, the court must review the file of each case individually to determine if the bench warrant was issued properly. If the bench warrant was not properly issued, you may convert the judgment to set off debt. If the bench warrant was properly issued, it may be reissued.