Criminal cases in South Carolina are heard in the Court of General Sessions. The principal parties in these cases are the solicitor, the defendant, and defendant's attorney, although the nature of the criminal justice process also may require the participation of a number of other agencies or offices between the time of arrest and disposition of a particular case. Depending on the nature of the offense, the magistrate; grand jury; law enforcement officers; Department of Corrections; Pretrial Intervention Program; Probation, Pardon and Parole Services, victims, and others may be involved.
Cooperation and communication among these participants contribute to the smooth and timely processing of criminal cases through the Court of General Sessions. This chapter details the Clerk of Court's role in establishing and maintaining the official court records for these cases and notes the points of contact with others involved in the process. Before describing the specific procedures involved, however, a brief overview of the process is presented.
Issuance of an arrest warrant, usually by the magistrate, is the normal means of commencing an action against an individual who is believed to have committed a crime. After obtaining an arrest warrant, a law enforcement officer arrests the named individual and returns with the individual to the magistrate. After a bond hearing, the individual is either released on bond or on his/her own recognizance, or bond is refused and the individual is taken to jail. The original arrest warrant and bond papers are sent to the Clerk of Court who enters the information into the Case Management System (CMS) and a copy of the warrant and bond papers are sent to the solicitor. The solicitor then decides whether or not to prosecute the charge. If prosecution goes forward, the solicitor will obtain an indictment from the grand jury and will assign a general sessions case number to the action. If prosecution is not pursued, or if the case will be transferred to a summary court, the solicitor should appropriately inform the clerk who then moves the warrant to the closed warrant file or transfers it to the summary court for prosecution.
If a case is to be prosecuted in the Court of General Sessions, it must first be presented to the grand jury, unless the defendant has waived presentment to the grand jury. Cases sent to the grand jury result either in the issuance of a True Bill, in which case prosecution may go forward, or in the issuance of No Bill, in which case the matter will be closed. Cases with True Bills and those with a waiver of presentment then go to the General Sessions court. For other cases, the course of criminal prosecution may involve pretrial motions, discovery, and mental or physical examinations before the case is ready for trial.
When the case is ready for trial, the solicitor will place the case on the trial roster and will have the required case records available in the courtroom during the trial. The clerk will provide jurors if the case is to be heard by a jury. In court, the clerk will maintain a record of the actions taken and, following the conclusion of the day's proceedings, take custody, if necessary , of any evidence entered in the case.
Upon pronouncement of a verdict, the clerk will publish the verdict, enter the verdict and the sentence in the court records, process the necessary papers to transfer the defendant to a correctional facility, return bail, arrange for payment of fines and fees, and effect referral to community service projects, etc., as applicable to each case. Additionally, the official records of the case must be closed, the case information system must be updated with disposition information and that information must be transmitted to Court Administration in a timely fashion.
Failure of the defendant to comply with the conditions of probation or a suspended sentence, or to pay the required fine or restitution may result in further action in the case. A rule to show cause, a probation warrant, or a bench warrant may be issued to bring the individual before the court again. At such time, probation may be revoked and the defendant sent to jail.
South Carolina's Circuit Courts employ the unified statewide Case Management System (CMS) to maintain the court’s records and to transmit caseload information to the South Carolina Judicial Department as required by Rule 78(a), SCRCP. In the past, physical docket sheets were used to record case information and transmit data; however, CMS has eliminated the need for docket sheets.
Although all criminal cases processed through the Court of General Sessions receive GS case numbers, there are certain types of cases that require special procedures. These case types will be discussed in this section, indicating the unique characteristics of each. Later in the general description of case processing , these differences will be noted as appropriate.
For cases in which the defendant may receive the death penalty, the judge will usually order that a larger jury venire be drawn. When summoning jurors, a special questionnaire (SCCA 219) must be sent to prospective jurors. Additional security measures may be required during the actual trial as well.
All convictions, pleas of guilty, or nolo contendere, forfeitures of bail for offenses charged under the DUI statute (§ 56-5-2930) must be reported to the South Carolina Department of Public Safety (SCDPS). Currently, Court Administration has the responsibility for reporting convictions to SCDPS based upon the information received from the clerk of court through the Case Management System. Accordingly, it is extremely important that the driver's license number, state, offense codes and disposition codes be correctly entered for these cases.
Depending on the county, PTI action may occur either at the warrant or indictment stage. After a defendant has been accepted into and enters PTI, the clerk of court will not be notified and the warrant will remain with all other pending warrants. A case that has been accepted into the PTI program will not receive a disposition and will remain pending until the solicitor effects a criminal or noncriminal disposition, depending on the participant’s progress in PTI.
The Clerk of Court first becomes involved in a potential general sessions case when an arrest warrant is forwarded with a transmittal form from the magistrate's office. All warrants are numbered for tracking purposes and the clerk must maintain alphabetical pending and ended arrest warrant files in the office. While retaining the original warrant for the warrant file, the clerk must forward a copy of the warrant attached to the corresponding CMS printout, as well as copies of any bond papers, to the solicitor who then determines whether or not to seek an indictment or otherwise proceed with prosecution.
As the official custodian of arrest warrants, the Clerk of Court must assure that the warrants forwarded from the magistrate's office are in proper form and are accompanied by the required Certificate of Transmittal before copies may be forwarded to the solicitor. All pending warrants should be accessible to the clerk.
If a case is remanded by the solicitor to the summary court, the solicitor will note a "7" disposition code on the EDS. The clerk will return the original warrant and all related case papers to the summary court along with a copy of the EDS screenprint.
Pursuant to § 22-3-545, the solicitor may elect to try certain General Sessions cases - crimes for which the penalty does not exceed five thousand dollars or one-year imprisonment, or both - in summary court. In such instances, the case will remain pending in the General Sessions Clerk's system. The case will be tried in the summary court and all paperwork, including disposition documents, will be filed with the Clerk of Court following the proceedings in summary court.
If the solicitor returns a warrant to the clerk with an indication that prosecution will not ensue, disposition code "4", the warrant must be moved from the pending arrest warrant file to the ended arrest warrant file.
An accused's right to counsel is covered by the Defense of Indigents Act, § 17-3-10 et seq., and Rule 602, SCACR. "As soon as practicable" following arrest, a detained individual should be taken before the Clerk of Court, or such other officer or officers as may be designated by the resident judge of that circuit , for a determination of the individual's right to counsel. The individual is usually taken to the courthouse, but in some cases the clerk or designated officer may need to go to the jail. In certain felony cases this process will occur during a formal arraignment before a circuit judge in the courtroom. In each case, the accused is informed of the charges against him or her and is asked questions to determine his or her eligibility for representation by the public defender or court appointed counsel.
Tasks: (if the Clerk of Court is the appropriate official as designated by the resident judge)
A. Take application for appointment of counsel using Form
II, Rule 602, SCACR, Affidavit of Indigency and Application of Counsel and
collect or waive application fee of $40.00 pursuant to S.C. Code § 17-3-45. (Please see
the NOTE below for important information regarding the application fee waiver).
Review the completed form and make a determination of indigency based on the procedures outlined in Rule 602, SCACR. A presumption that the person is indigent shall be created if the person's net family income is less than or equal to the Poverty Guidelines established and revised annually by the United States Department of Health and Human Services and published in the Federal Register. Net income shall mean gross income minus deductions required by law. A Poverty Guidelines memorandum is sent to the clerks of court each year by Court Administration.
B. If eligible for representation, notify public defender's office, if applicable; or prepare order for judge's signature appointing private counsel (Form No. IV, Rule 602, SCACR). Private counsel appointments are governed by Rule 608, SCACR (Please see Rules Tab section of this chapter).
C. Provide accused with written designation of counsel.
D. Make copies of completed form and distribute to:
1. Appointed counsel or public defender, if appropriate. A copy of the
warrant or ticket should accompany this copy.
2. The Circuit Solicitor.
E. Attach original Form IV, Rule 602, SCACR, to arrest warrant.
NOTE: The appropriate official screening applications bears some responsibility in reporting waivers of the application fee pursuant to the following statute. The application fee is $40.00 pursuant to S.C. Code § 17-3-45.
S.C. Code § 17-3-30. Affidavit of inability to employ counsel; payment of indigent's assets to state; application fee; waiver or reduction of fee; disposition of fee revenues; fund for screening applicants.
(A) A person to whom counsel has been provided shall execute an affidavit that he is financially unable to employ counsel and that affidavit shall set forth all his assets. If it appears that the person has some assets but they are insufficient to employ private counsel, the court, in its discretion , may order the person to pay these assets to the defender corporation of the county or counties wherein he is being represented or, if a defender corporation does not exist therein, to the Office of Indigent Defense of the State of South Carolina.
(B) A forty dollar application fee for public defender services must be collected from every person who executes an affidavit that he is financially unable to employ counsel. The person may apply to the clerk of court or other appropriate official for a waiver or reduction in the application fee. If the clerk or other appropriate official determines that the person is unable to pay the application fee, the fee may be waived or reduced , provided that if the fee is waived or reduced, the clerk or appropriate official shall report the amount waived or reduced to the trial judge upon sentencing and the trial judge shall order the remainder of the fee paid during probation if the person is granted probation. The clerk of court or other appropriate official shall collect the application fee imposed by this section and remit the proceeds to the state fund on a monthly basis. The monies must be deposited in an interest-bearing account separate from the general fund and used only to provide for indigent defense services. The monies shall be administered by the Office of Indigent Defense. The clerk of court or other appropriate official shall maintain a record of all persons applying for representation and the disposition of the application and shall provide this information to the Office of Indigent Defense on a monthly basis as well as reporting the amount of funds collected or waived.
NOTE: Vouchers and timesheets used for reimbursement by attorneys appointed for indigents are available from the S.C. Office of Indigent Defense (http://www.scoid.state.sc.us/).
The 2012-2013 General Appropriations Act (A. 288, H. 4813) granted the South Carolina Commission on Indigent Defense (SCCID) the authority to “retain, on a contractual basis, the services of attorneys qualified to handle civil and criminal court appointments, to be reimbursed in accordance with applicable provisos and statutes.” Please click on the following link to view the order and procedures established for SCACR contract attorney appointments.Contract Attorney Appointments (September 13, 2012)
Preliminary hearings are held in the magistrates court upon written demand by the defendant. If the arrest warrant has already been forwarded to the Clerk of Court, the clerk must return a certified copy to the magistrate for the hearing.
5.4.1 If a Case is Dismissed at a Preliminary Hearing by the Summary Court, the solicitor is notified by the magistrate and solicitor will mark block "8" on the EDS screenprint and return the document to the clerk to end the case. A judge code of "001" for magistrate should be used in this instance.
Note: This action does not prevent the solicitor from seeking a direct indictment from the grand jury on the same charges.
To ensure the appearance of an accused before the court, bond is set in a specified amount, with appropriate conditions. Bond is generally set in the magistrates court, and the bond forms together with any cash payments are forwarded by the appropriate official to the Clerk of Court to be maintained with the arrest warrant. In cases where the defendant is charged with an offense punishable by death or life imprisonment, the circuit court sets bond. Should cash be posted in lieu of surety bond at any time, the cash deposit is made to the Clerk of Court.
Upon the principal's meeting the requirements of the bail/bond and upon order of the court, the clerk is responsible for returning the bail, distributing forfeited bail (§ 17-15-260), or using bail for restitution purposes if appropriate.
S.C. Code Ann. § 17-15-240 allows Clerks of Court to deposit bail bond monies in interest bearing accounts with all interest being credited to the general fund of the county. Each office proposing to deposit these funds into an interest bearing account must develop a plan to account for the interest earned. This plan must have the approval of the county administrator, county council or an internal auditor. The plan along with the approval must be filed with South Carolina Court Administration.
1. defendant's name
2. bond amount
3. warrant date
4. bond date
5. offense charged
6. warrant number
7. name of surety
8. name of issuing magistrate
An individual may make a cash deposit to the Clerk of Court in lieu of bond. If a bond has previously been posted, the cash deposit releases the bond. If no bond was previously posted, the clerk must arrange the release of the individual for whom the bail was paid.
A. deposit may be for a percentage of the bond, if so authorized by the
court setting bond (§ 17-15-15); or,
B. deposit may be for full amount of the bond (§ 17-15-190).
A. the money has been deposited and that money is held for the same
purpose as would have been specified and conditioned in the bond in lieu of
which it was filed. (§ 17-15-210)
B. The receipt should also reflect the following information:
Date of transaction
Amount of cash deposit
Party from whom received
Party for whom received
When the conditions established for the underlying bond have been met, and the individual is released without further liability, an application for the return of the deposit may be made. (§ 17-15-220)
|1.|| Property owner(s) must have a title search conducted on real estate they
wish to post. Search must be conducted by an attorney (member of SC Bar) searching back 62 years from the current date.
|2.||Property owner(s) must obtain a title of opinion letter from the attorney or a completed Certificate of Value of Real Estate for Bond. Either document must contain the Tax Map #, Legal Description of Property, and any liens, mortgages, judgments, or encumbrances. Either document must be dated the same day that it is being posted at the Clerk’s Office.|
|3.||The value of the property must be based upon the appraised value by the County Tax Assessor. A certified copy of the assessment roll on property must be provided to the Clerk with this documentation.|
|4.||Property owner(s) must first complete the “Application for Pledge of Real Estate for Surety Bond,” initialing the required
areas on the application and signing and dating at the bottom of the document. The original signed application must be retained in the Clerk’s
|5.||Property owner(s) must complete “Notice of Pledge of Real Estate.” This document and Certificate of Value for
Bond/Opinion Letter from attorney must be filed by property owner with the Register of Deed’s Office and pay a filing fee of $10. Property
owner(s) must bring clocked copy of documents back to the Clerk of Court for filing and pay a filing fee of $10.
|6.||Property owner(s) must present documentation to appropriate judicial official for posting of bond. Property owner(s) must
sign the back of “Bond Form II” in the area for surety bondsman.
|7.||At final disposition of the criminal case and upon proof by property owner(s) of defendant’s compliance with the bond,
property owner(s) must file a “Release of Pledge of Real Estate” or “Satisfaction of Judgment” with the Register of Deeds, along with a filing fee
|8.||Property posted for this purpose must be located within the County in which the charges are pending. Property located in
another County or out of state is not appropriate for such a pledge.
|9.||Each County Clerk may determine whether the property must be free of all encumbrances or simply have sufficient equity in the property to cover the bond.|
 All property owners must be present with picture ID and all must sign each document.
Indictments are obtained from the grand jury by the solicitor but the original indictment will remain with the clerk of court. Each indictment will bear a unique sequential GS indictment number with the first four digits bearing the year the indictment was obtained. The two numbers directly after the "GS" designation will be the county number. The remaining digits represent the sequential numeration of indictments. For example, the first indictment of 2000 in Richland County will be 2000-GS-40-00001.
5.6.1 Initiating Documents
Initiating documents that cause a case number to be assigned include an indictment or a defendant's waiver of presentment to the grand jury.
5.6.3 Indictments with Alphas
As indicated in Section 5.6, each indictment will bear a unique sequential GS indictment number with the first four digits bearing the year the indictment was obtained. The two numbers directly after the "GS" designation will be the county number. The remaining digits represent the sequential numeration of indictments. For example, the first indictment of 2013 in Richland County will be 2013-GS-40-00001. An alpha is an alphabetical letter added to the end of an indictment number, such as 2006-GS-40-00001A.
All arrest warrants are numbered for tracking purposes. In the absence of an arrest warrant and therefore a warrant number to track a pending charge, the indictment number is used to track the charge and the case. This is most common when the solicitor seeks a direct presentment, or straight indictment.
In the event that the solicitor chooses to combine more than one charge on an indictment (i.e., kidnapping and murder) and there is no arrest warrant, alphas must be added to track each charge since there is no warrant number. Additionally, the solicitor may choose to indict several defendants under the same indictment. If the defendants were directly presented and therefore do not have arrest warrants, then alphas must be used. However, if each defendant has an arrest warrant and they are indicted under the same number, no alphas are used since the warrant number serves as the tracking mechanism. Therefore, an alpha should only be used when there is no arrest warrant on an indictment with multiple charges and/or multiple defendants.
By statute, § 1-7-330, General Sessions trial dockets are the responsibility of the solicitor. This docket should be published no later than seven days prior to the start of a General Sessions term.
The clerk should be provided with a copy of the trial docket in sufficient time to allow the necessary warrants to be pulled, if the original warrants are needed in court.
A copy of the printed docket can be used in court for notation of actions taken in each listed case.
For any instance where information previously reported to Court Administration on a case record changes, or information not previously available is added, the EDS changes must be transmitted to Court Administration. These changes include, but are not limited to, correcting the spelling of a defendant's name, correcting the warrant/ticket number, any information not previously available, etc.
At each term of the Court of General Sessions the Clerk of Court has numerous courtroom responsibilities. In preparation for court sessions, the warrants for scheduled matters can be pulled from the pending or active files, and organized according to the trial roster. During court, the clerk records the information required for the Court of General Sessions Journal and the Sessions Index
[§ 14-17-540(2) and (3)], completes forms requested by the judge, swears jurors and witnesses, and publishes pleas or verdicts. Depending on the circuit, fines, fees, costs and assessments may be collected in the courtroom or by the accounting section staff. Following court, the EDS must be updated and bench warrants entered in the Bench Warrant book.
Tasks - During Court:
Receive original indictment(s) from solicitor when defendant appears before the court.
1. If the solicitor responds "Excuse the juror," the juror will
return to his seat with the rest of the jury panel.
If the solicitor answers "Present the juror," the clerk will inquire of the defense attorney, "What says the defense?" The defense attorney will respond with "Swear the juror" or "Excuse the juror."
2. If the defense attorney responds "Swear the juror," the juror will take his seat in the jury box.
If the defense attorney responds "Excuse the juror," the juror will return to his seat with the rest of the jury panel.
This juror's name will be laid to the side and another name drawn from the pool. The names of those jurors to be sworn should be kept separate from the names of those jurors, which have been excused.
Twelve jurors are drawn and sworn in this manner, as are any alternate jurors the trial judge deems it necessary to empanel.
The clerk records the names of the jurors drawn and sworn and sets those slips aside until the verdict is reached. The remaining slips are returned to the jury pool.
D. Administer oaths to venire prior to voir dire and to the jury
(For sample oath, see 4.7.2)
E. Upon return of jury, pass indictment to judge for approval of the verdict form. Publish jury verdict upon request of judge. Poll jurors if requested by either party.
"State your full name, raise your right hand and place your left hand on the Bible. The evidence you shall give the Court and jury upon the trial of this case shall be the truth, the whole truth and nothing but the truth. So help you God (if no objection)."
"You do solemnly swear that the testimony you are about to give in this case to be the truth, the whole truth and nothing but the truth. So help you God (if no objection)."
"Do you solemnly promise and swear that you shall interpret the testimony of the witness as he or she makes the answers to you? So help you God (if no objection)."
C. Constable (Bailiff):
"You and each of you solemnly swear you will keep the jury sworn. You will suffer no one to speak to them, neither speak to them yourselves about this case. So help you God (if no objection)."
D. Constable to take jury to meal:
"Do you solemnly swear that you will keep the jurors sworn in this case and take them to some convenient place for lunch; that you will suffer no person to speak with them, nor any of them, neither speak with them yourself , nor suffer them to speak with any persons and after lunch return them to their jury room and keep them there until further directed by this Court? So help you God (if no objection)."
A. Review exhibit list and exhibits with the reporter.
B. Sign list showing exhibits received.
C. Retain a copy of the list.
D. Return original list to the court reporter.
S.C. Code Ann. §17-25-135 provides that, upon conviction of certain offenses, a defendant should be placed on the Central Abuse and Neglect Registry. Specifically, when a defendant is convicted of or pleads guilty or nolo contendere to an "Offense Against the Person" as provided for in Title 16, Chapter 3, an "Offense Against Morality or Decency" as provided for in Title 16, Chapter 15, criminal domestic violence, criminal domestic violence of a high and aggravated nature, or assault and battery of a high and aggravated nature, and the act on which the conviction or guilty plea or nolo contendere is based involved sexual or physical abuse of a child, the court shall order that the person and the nature of the act which led to the conviction or plea be placed in the Central Registry of Child Abuse and Neglect. The judge will indicate on the sentencing sheet if the defendant is ordered to be placed on the registry. A copy of the indictment, sentencing sheet and DSS Form 30165 should be forwarded to the Department of Social Services, if ordered.
Bench warrants are issued by the court when an individual fails to comply with an order of the court, and may occur at any point from failure to appear on bond to failure to comply with conditions of an alternative sentence.
Bench warrants direct law enforcement personnel to arrest and take a given individual to jail. Issuance of a bench warrant is directed by the judge who may sign the warrant or direct the Clerk to do so. If the defendant appears in court or the underlying indictment is disposed of before the bench warrant is served, a recall of the bench warrant may be directed by the judge. Without a recall, the bench warrant remains valid.
A. Prepare order of recall of bench warrant.
B. Present to judge for review and signature if appropriate.
C. If the recall order is signed:
1. File stamp order.
2. Make certified copy and deliver it to the solicitor and all law enforcement offices that received bench warrant. Always retain the original order for filing in clerk's office.
3. Note recall order in bench warrant log.
4. Place original order in case file.
Note: If solicitor receives notice of the service of the bench warrant before the clerk, a Notice To Restore form will be completed and sent to the clerk.
Depending on when a disposition occurs during a criminal prosecution, some of the tasks required of the clerk will vary. In all cases, disposition information must be recorded in CMS and transmitted to Court Administration.
A. Guilty Plea - A defendant may plead guilty to the charges in court or may plead nolo contendere. For guilty pleas, if local practice dictates, one of two stamps may be applied to the indictment: one for those waiving presentment, one for all other guilty pleas. The defendant must sign the plea in such instances. However, the uniform sentencing sheet, SCCA 217, contains language that functionally eliminates the need for such stamps. In all cases in which conviction occurs, the uniform sentencing sheet, SCCA 217, must be used. The sentencing form is initiated by the solicitor and is completed and signed by the judge and clerk. The defendant and defense counsel should also sign the sentencing form to attest to the accuracy of the information.
Upon receipt of indictment:
B. Trial Verdicts - Following a jury or nonjury trial, a verdict of guilty, not guilty, not guilty by reason of insanity, or guilty but mentally ill may be rendered by the jury or the court. If found guilty, a sentence will be entered on the verdict. If found not guilty, the charges will be dismissed and the case closed. If found not guilty by reason of insanity, the charges will be dismissed and the case closed, and the judge should simultaneously issue an order committing the defendant to the South Carolina Department of Mental Health for up to 120 days for development of a care and treatment plan [SCCA Form Order 222(a)]. If found guilty but mentally ill, a sentence will be entered on the verdict just as if a guilty verdict was rendered; however, if sentenced to incarceration, the Defendant must be first taken to a facility within SCDC for treatment before being transferred to the general prison population. To insure that this is done, the Clerk should clearly write on the sentencing sheet, in bold letters, that the Defendant was found GUILTY BUT MENTALLY ILL.
NOTE: See 5.8.2 below for post sentencing and case closing procedures.
Tasks for jury cases involving a verdict of guilty:
NOTE: See 5.8.2 below for post sentencing and case closing procedures.
C. Dismissed/Nol Prossed/Prosecution Ended - If the solicitor dismisses a warrant or ticket or nol prosses or ends prosecution on an indictment, the disposition information will be completed on the EDS and returned to the clerk. This information will include the disposition date, the disposition type"4," judge code "097" for solicitor and the signature of the solicitor. If the case was indicted, the original indictment will be sent to the clerk.
Tasks - case ended as warrant/ticket:
Tasks - case ended as indictment:
D. Failure to Appear - If the defendant fails to appear in court (and a bench warrant has been outstanding for at least 90 days), the solicitor can administratively remove the case from the active docket. The solicitor would complete the disposition information and the clerk would follow procedures in the same manner as described above in 5.8.1(C). A Failure to Appear disposition code receives a "9" disposition code. A judge code of "097" must be used in all dispositions using a "9" disposition code. These cases can be restored to active status by the solicitor completing a Notice to Restore (SCCA 224) and sending it to the clerk (see 5.8.3 for restore procedures).
E. Judicial Dismissal - If a case is dismissed by the circuit court judge, disposition type "6" should be indicated on the EDS as well as the disposition date and the judge code. This action may take place in court or out of court. If the disposition takes place in court, the clerk should record the ending information on the EDS. If the disposition takes place out of court, the solicitor should record the disposition information on the EDS and transmit it to the clerk along with the judge's order of dismissal.
F. Remanded - If the solicitor remands a warrant, disposition type "7" should be indicated on the EDS as well as the disposition date and judge code 97 for solicitor. See Section 5.2.2 for information on processing remanded warrants.
G. Dismissal at Preliminary Hearing - Lack of probable cause may be found at the preliminary hearing, and the warrant dismissed. This dismissal will be recorded by the magistrate and notice sent to the solicitor. Upon receipt of this notice, the solicitor will forward the disposition information to the clerk. For Tasks see 5.4.1 above.
H. No Bills - If the grand jury returns a no bill on an indictment, the solicitor will forward the disposition information to the clerk. The clerk will process this case by using a disposition code "8", the disposition date and judge code "097" in the same manner as described in 5.8.1(C) of this section with the exception being the use of the "8" disposition code.
I. Drug Court - Drug Courts are in operation in various circuits and in various courts in the State. For the purposes of drug courts in operation in General Sessions, a drug court case can be administratively removed and subject to restoration pending certain conditions and requirements put upon the defendant. The solicitor should notify the clerk's office that a case has been referred to drug court at which time the case can be administratively removed from the pending caseload by using a "0" disposition code, "097" judge code, and entering "DRUG COURT" in the sentence literal field. All other disposition information, except for the disposition date, should remain blank.
J. Conditional Discharge
A conditional discharge allows an individual to enter a conditional plea of guilt without actually entering a judgment of guilt. Further court proceedings against the defendant are deferred and the defendant is placed on probation. If the defendant violates any of the terms of the probation, the court may enter an adjudication of guilt. If the defendant successfully completes the terms of the probation, the court will dismiss the proceedings against him, and the defendant may pursue an expungement order as provided by S.C. Code Ann. §44-53-450(b).
When a defendant enters a conditional plea of guilt, also known as a conditional discharge, no disposition should be assigned or entered. The case will remain pending until the terms of the agreement have been violated or successfully completed as set forth during the plea.
If the terms of agreement are successfully completed, the solicitor will advise the clerk of court and the clerk should enter a Judicial Dismissal-6 code.
If the terms of the agreement are violated, the case will continue to remain pending until final adjudication of the defendant.
The following is a reference chart for disposition codes used in General Sessions cases:
1 - Guilty Plea (Judge Code must be between 01 and 96, inclusive; or equal to 98; or greater than 101)
2 - Trial: Guilty (Judge Code must be between 01 and 96, inclusive; or equal to 98; or greater than 101)
3 - Trial: Not Guilty (Judge Code must be between 01 and 96, inclusive; or equal to 98; or greater than 101)
4 - Nol Pros/ Prosecution Ended (Judge Code = 97)
5 – Formerly PTI and Judicial Commitment (no longer used)
6 - Judicial Dismissal (Judge Code must be between 01 and 96, inclusive; or equal to 98; or greater than 101)
7 - Remanded (Judge Code = 97, enter explanation in comments field)
8 - Dismissed at Preliminary Hearing (Judge Code must be either 001 or 101)
9 - Failure to Appear (Judge Code = 97, enter date bench warrant issued in comments field)
0 - Drug Court (Judge Code = 97, sentence literal should read " DRUG COURT" and enter date defendant accepted into program in comments field)
0-C Not Guilty by Reason of Insanity (Due to transmittal limitations, these dispositions are reported as Not Guilty to SLED.)
Sentences rendered in criminal cases mainly include incarceration, fines, restitution, and probation, or a combination of these - sentence of incarceration may be suspended in lieu of probation payment of restitution. Different procedures will be required for the clerk depending upon the sentence and or conditions in each case.
1. Probation - The conditions of probation are incorporated by reference in the Sentence Sheet (SCCA 217). If any of the conditions of probation are violated, the defendant's probation may be revoked and up to the suspended sentence may be implemented. Paperwork associated with probation violations should be filed in the original General Sessions case file.
2. Restitution - The Victims and Witnesses Bill of Rights (§ 16-3-1530) requires the court, absent compelling reasons, to include restitution as a condition of probation or parole. Pursuant to § 17-25-322, § 24-21-490, and § 24-23-110, the Department of Probation, Parole and Pardon Services (SCDPPPS) normally collects court ordered restitution. In special circumstances, such as with older cases, it may be necessary for restitution payments to be collected through the Clerk of Court. Also, if a cash deposit was paid on bond and is unassigned, it may be used to pay restitution. (See also Chapter 2)
3. Community Service - Community service work may be ordered as a condition of probation. Defendants in these programs must be directed to the probation office that will monitor compliance with the order.
Pursuant to § 17-25-323, the text of which follows, if the defendant is in default in the payment of any criminal fines, surcharges, assessments, costs , and fees ordered, the amount may be reduced to a civil judgment and enrolled against the defendant. Such judgments should be enrolled in Common Pleas Court and assigned a CP case number.
§ 17-25-323. Continuing jurisdiction over court-ordered payments; default by person on probation or parole; enforcement as of civil judgment and lien; entry in records.
(A) The trial court retains jurisdiction of the case for the purpose of modifying the manner in which court-ordered payments are made until paid in full, or until the defendant's active sentence and probation or parole expires.
(B) When a defendant has been placed on probation by the court or parole by the Board of Probation, Parole, and Pardon Services, and ordered to make restitution, and the defendant is in default in the payment of them or of any installment or of any criminal fines, surcharges, assessments, costs, and fees ordered, the court, before the defendant completes his period of probation or parole, on motion of the victim or the victim's legal representative, the Attorney General, the solicitor, or a probation and parole agent, or upon its own motion, must hold a hearing to require the defendant to show cause why his default should not be treated as a civil judgment and a judgment lien attached. The court must enter (1) judgment in favor of the State for the unpaid balance, if any, of any fines, costs, fees, surcharges, or assessments imposed; and (2) judgment in favor of each person entitled to restitution for the unpaid balance if any restitution ordered plus reasonable attorney's fees and cost ordered by the court.
(C) The judgments may be enforced as a civil judgment.
(D) A judgment issued pursuant to this section has the force and effect of a final judgment and may be enforced by the judgment creditor in the same manner as any other civil judgment with enforcement to take place in court of common pleas.
(E) The Clerk of Court must enter a judgment issued pursuant to this section in the civil judgment records of the court. A judgment issued pursuant to this section is not effective until entry is made in the civil judgment records of the court as required under this subsection.
(F) Upon full satisfaction of a judgment entered under this section, the judgment creditor must record the satisfaction on the margin of the copy of the judgment on file in the civil judgment records of the court.
Following disposition and completion of the procedures related to the particular disposition of the case, CMS must be updated, the file closed, and the information transmitted to Court Administration.
NOTE: Dispositions that are determined out-of-court will involve the solicitor appropriately notifying the clerk of that disposition.
Following notification of disposition or trial conclusion, and information updating:
Several actions may occur following disposition in a criminal case.
Claims for the vacating, setting aside, or correcting a sentence are processed as civil actions [see 6.2.1(C)] under the Uniform Post-Conviction Procedure Act (§ 17-27-10 et seq. and Rule 71.1 SCRCP).
Once a trial court judgment imposing the death sentence becomes final, review on the record by the Supreme Court follows automatically. The Clerk of Court is responsible for forwarding the appropriate notice to the Supreme Court. (§ 16-3-25)
- Case number
- Name of defendant
- Name and address of defendant's attorney
- Narrative statement of the judgment, the offense, and the punishment prescribed
- File stamp and file Supreme Court order affirming sentence.
- File case jacket with ended cases.
If a defendant is successful in direct appeal or post-conviction relief proceedings, the case may be remanded back to the circuit court for retrial or re-sentencing.
The Department of Probation, Parole and Pardon Services (SCDPPPS) supervises the release of parolees and probationers. Agents of SCDPPPS serve probation violation warrants and citations and file these documents, along with revocation orders, with the Clerk of Court. A standard probation revocation form order SCDPPPS, Form 9, is used to record the findings of and conditions imposed by the court. Ideally, the order will travel with the defendant and this will ensure that the Department of Corrections (or the detention facility) will receive an order directing commitment and the length of such commitment with each defendant whose probation was revoked.
The Department of Probation, Parole, and Pardon Services will file with the Clerk of Court, after service, the original arrest warrant or citation bearing the relevant general sessions case number of the original conviction.
The Clerk of Court will file the original arrest warrant or citation in the defendant's general sessions case file. For those defendants who were sentenced in some other county, the warrant or citation will be temporarily filed in a special alphabetical case file for pending probation revocation matters.
SCDPPPS will schedule criminal sentence revocation hearings in accordance with the administrative or presiding judge's instructions and will notify the clerk and, as appropriate, the sheriff or detention facility of the scheduling of these hearings.
Following the hearing, SCDPPPS will complete the form order 9 according to the instructions of the presiding judge and provide this completed order to the presiding judge for signature. After the order is signed by the judge, it will be hand delivered by the probation officer to the Clerk of Court for filing and for the certification of the copies.
The Clerk of Court will accept for filing the completed order and will provide certified copies of the order to the probation officer. If probation is revoked, the clerk will also provide a certified copy of the order to the sheriff or detention facility who will then transport the defendant to jail. The clerk will then file the original order in the general sessions case file of the defendant.
For those defendants whose conviction occurred in a county other than the county of revocation, the original order and the original warrant or citation will be sent by the clerk of the revoking county to the county where the original conviction took place. The clerk of the county of the original conviction shall file these documents in the defendants general sessions case file.
The SCDPPPS Form 9 is approved as the exclusive form for the purpose of processing criminal sentence revocations until amended or rescinded by the Chief Justice.
Certain activities pertaining to General Sessions records do not arise frequently but require special processing by the Clerk of Court when they do arise. They are discussed below.
When allowed by statute, an individual may petition the court to have certain records expunged. Pursuant to 2009 Act No. 35, Section 17-22-950 was added to the SC Code and requires the Summary Courts to automatically issue orders of expungement for cases tried in their courts when the defendant is found not guilty, or if the charges are dismissed or nolle prossed. In all other situations, expungements are processed through the Solicitor’s office in the circuit in which the offense was committed. Once the Order for the Destruction of Arrest Records is signed by the judge, the solicitor will file the order with the clerk of court. The clerk must remove all reference to the expunged action from the court records.
Pursuant to S.C. Code § 17-22-950, the clerk of court shall direct all inquiries concerning the expungement process to the corresponding solicitor's office to make application for expungement.
A. The Expungement Process
(1) The applicant will apply to the solicitor in the circuit in which the offense(s) was committed.
(2) The applicant must pay the following amounts to the solicitor in the form of separate certified checks or money orders:
(a) a non-refundable administrative fee of $250.00 made payable to the solicitor,
(b) a non-refundable SLED verification fee of $25.00 made payable to SLED, when applicable,
(c) a filing fee of $35.00 made payable to the county clerk of court, when applicable.
(3) Pursuant to Section 17-22-940(B), of the South Carolina Code of Laws, any person who applies to the solicitor's office for an expungement of general sessions charges pursuant to S.C. Code § 17-1-40 is exempt from paying the administrative fee, unless the charge that is the subject of the expungement request was dismissed, discharged, or nolle prossed as part of a plea arrangement under which the defendant pled guilty and was sentenced on other charges.
(4) The solicitor will send the application to SLED in order to verify that the offense is eligible for expungement, as provided by the South Carolina Code of Laws.
(5) SLED will return the application to the solicitor and indicate if the offense(s) is eligible for expungement.
(6) If the offense is determined to be eligible for expungement by SLED, the solicitor will obtain all necessary signatures, including the signature of the PTI Director, the summary court judge, and the circuit court judge.
(7) Once the order is signed by the circuit court judge, the solicitor will file the order with the clerk of court (Please see Clerk of Court tasks below).
(8) The solicitor will provide copies of the expungement order to all pertinent governmental agencies as well as the applicant or the applicant’s attorney.
EXPUNGEMENT ORDERS SHOULD NOT BE FORWARDED TO S.C. COURT ADMINISTRATION (SCCA):
(1) for magistrate or municipal court convictions/dispositions, because SCCA does not retain information which identifies defendants by name or SSN for these charges; or
(2) for general sessions convictions/dispositions because disposition data (including expungements) is sent to SCCA electronically, and expungements are automatically entered into SCCA records; or
(3) for family court convictions/dispositions because disposition data (including expungements) is sent to SCCA electronically, and expungements are automatically entered into SCCA records
B. Tasks for General Sessions Expungements
NOTE: An internal index also may be kept under lock and key for retrieval purposes in the event a question is later raised as to whether a particular criminal record should have been destroyed.
C. Objections to Expungements
S.C. Code § 17-22-950(A) provides that a prosecuting agency or appropriate law enforcement agency may file an objection to a summary court expungement. If an objection is filed by the prosecuting agency or law enforcement agency, that expungement then must be heard by the Circuit Court judge in General Sessions. The prosecuting agency’s or the appropriate law enforcement agency’s reason for objecting must be one of the following:
(1) accused person has other charges pending;
(2) prosecuting agency or the appropriate law enforcement agency believes that the evidence in the case needs to be preserved; or
(3) accused person’s charges were dismissed as a part of a plea agreement.
When an objection to an Expungement is filed with the Summary Court, the Summary Court will then forward the written objection, the record, and the objection form (SCCA 223C) to the Circuit Court Clerk of Court.
1. Verify that the written objection includes the record and Form 223C.
2. There is no filing fee for such actions.
3. File and stamp the written objection, Form 223, and any copies.
4. Enter the case into the computer under the ‘Object to Expungement Case Entry.’ The case type will be OE - Object Expungement. The Case status will default to Objection to Expungement Pending, and the Objection/Expungement will be the action automatically filed on the case. These cases will appear on the Public and Central Indexes, and they will not be reported to the Solicitor or SC Court Administration.
5. For Warrant/Case, the clerk will enter the original ticket/warrant number.
6. For Issuing Judge, the clerk will enter the court where the objection came from.
7. For Warrant Received Date, the clerk will not enter a date.
8. For Offense Date, Offense Charge, Arrest date, the clerk will enter the information from the original ticket. If there was not an arrest date, the clerk should enter the offense date.
9. The clerk will then click on the gavel to run a court process, instead of opening the case up in the case manager; once the court process button is clicked, choose the court process - PG/TG No Fine Imposed to remove the default money that is on the case.
10. After the case has been added, the clerk should go to the case manager in the CMS system, click on the Associate Cases, and associate Objection to Expungement case to the Summary Court case.
11. The clerk will scan the Form 223C and attach it to the filing Expungement/Objection which will already be on the case.
12. For the Rosters:
Pursuant to §14-5-410 of the SC Code, whenever provision is made for holding the court of common pleas, the presiding judge, during the time allowed for the holding of the court of common pleas, may open the court of general sessions and transact all or such business of the court of general sessions except trials by jury as such judge may deem expedient.
A. Add Manually – the clerk should go to the case manager and on the SC Information Screen, click on the Additional Information tab, and to the right of the screen will be a ‘firecracker’ button, click on the button to add it to the next available Case Roster for Objection to Expungement;
B. Add Automatically – the clerk should go to the Case Roster button on the Application Bar, and click to open up the Case Rosters, choose the roster and then the button to extract cases for the roster (cases will be selected because of the EO case type and the Objection to Expungement Pending status on the case); if choosing to automatically select cases, and will use this option to determine how many need to be scheduled, when it is time for scheduling, the extract cases function will need to be done just before setting the schedule to pick up ones that were entered into the system after the initial extraction
C. Publishing Roster – when the roster has been completed for the term, the clerk should publish the roster. The parties who have their email entered on the case party screen will receive an email informing them of the term of court. If the party does not have an email, then they will get a standard letter that is printed to be mailed to them.
D. At term of Court – the clerk should print the roster from the website to use for court, distributing copies, and for taking notes.
13. At the hearing, the Circuit Court judge will determine whether the defendant is entitled to have the record expunged. The determination should be recorded on the second page of Form 223C which is titled Order of the Circuit Court Judge.
14. The clerk should retrieve the record, the written objection, and the completed Form 223C.
15. Upon the conclusion of the hearing, the clerk should maintain a certified copy of Form 223C and Order of the Circuit Court Judge and the written objection for the case file.
16. To dispose the case, the clerk should enter the disposition of the case along with the date and the judge code on the charges screen in the case manager.
a. Disposition – EO1 - Objection to Expungement Upheld – will default the status of Objection to Expungement Upheld
b. Disposition – EO2 - Objection to Expungement Denied – will default the status of Objection to Expungement Denied
17. Post Disposition Duties:
a. If the Objection to Expungement is upheld – The clerk will return the original Form 223C, record, and written objection to the Summary Court.
b. If the Objection to Expungement is Denied – The clerk will expunge the OE case. The clerk should not expunge the Summary Court Case. The clerk will destroy the certified copy of Form 223C, the Order of the Circuit Court Judge and the written objection in the case file. The clerk will also return the original Form 223C, record, and written objection to the Summary Court.
Pardons are issued by the Probation, Parole and Pardon Board. A pardon relieves an individual of all the legal consequences of his crime. All civil rights, such as the right to vote, serve on a jury or hold a public office which were lost upon conviction are fully restored upon pardon. The Clerk of Court must maintain a Book of Pardons in which to record all persons pardoned in the county. Pardoned offenses are not expunged.
Name of person pardoned (list alphabetically)
Offense for which convicted
Date of conviction
Date of pardon
Reference: § 14-17-540, § 24-21-930, § 24-21-990, § 24-21-1000
For traffic violations within the jurisdiction of the Circuit Court, the charging document will usually be a uniform traffic ticket rather than an arrest warrant. On the Certificate of Transmittal, the magistrate will note the appropriate traffic ticket designation and will attach the ticket. Bond monies posted in these cases also will be forwarded. The preprinted number from the ticket should be entered in CMS in the warrant field.
Chapter 1, Article 5 of Title 56, Motor Vehicles (§ 56-1-1090) was amended , effective January 1, 1989, to provide that the South Carolina Department of Public Safety is responsible for determining that a person is a habitual offender and restoring the habitual offender's driver's license. In the past, the circuit court was responsible for this activity and the Clerk of Court was necessarily involved. As of January 1, 1989, this no longer requires the attention of the circuit court and the Clerk of Court will not be involved in this process.
S.C. Code Ann. § 56-1-365 provides that any South Carolinian forfeiting bail , being convicted of, or pleading guilty or nolo contendere to an offense for which his South Carolina driver's license will be revoked or suspended must immediately surrender the license to the court. Failure to produce the license immediately upon conviction is punishable by a fine not to exceed two hundred ($200) dollars. The court should request the defendant to surrender his license to the clerk. The South Carolina Department of Motor Vehicles (DMV) personnel may collect any forfeited driver's license and other documents from the court. However, if the DMV does not collect a license, the clerk must transmit the license to the DMV within five (5) days. A list of offenses which require suspension of a driver’s license can be found in the Chapter 5 Appendix.
NOTE: a separate form should be filled out for each jurisdiction from which uniform traffic tickets or warrants were issued, i.e., Sheriff's Department, City Police, Highway Patrol, etc.
NOTE: Do not send original court documents. If the yellow copy is not available for transmittal and the five days allowed for transmittal will expire , you should provide the DMV with a certified copy of the "trial officer's copy" (green copy) of the ticket.
In 1989, amendments to Article I and Article V of the South Carolina Constitution were ratified which created the State Grand Jury. The State Grand Jury was established to indict drug and obscenity cases which involve multiple counties. Each grand jury serves for one year and consists of 18 jurors. The grand jury meets as ordered to consider matters presented by the Attorney General and to determine whether or not to return a bill of indictment on each matter presented. Grand jury proceedings are secret and non-adversarial. Twelve grand jurors must agree on a matter before it can be sent to the court.
The Clerk of the State Grand Jury will notify each county Clerk of Court of the number of names they are required to draw from their juror rolls for inclusion in the State Grand Jury pool. The voter registration number, social security number, driver's license number and/or date of birth must be included for each individual drawn. A master list which reflects each name from every county is compiled and from this list the jurors are drawn and summonsed to report. The Clerk of the State Grand Jury is responsible for drawing and summoning the jury venire for the State Grand Jury.
The State Grand Jury meets in Columbia and the Clerk of the State Grand Jury is responsible for managing these jurors. The venue of trials of defendants indicted by the State Grand Jury will be set by the presiding judge of the State Grand Jury. The Chief Justice will assign a circuit court judge to take jurisdiction of all civil and criminal cases arising out of each State Grand Jury investigation where indictments are returned and set terms of court for the trial of these cases in the county where venue is set.
Pursuant to an administrative order of the Chief Justice dated December 7, 2000, the administrative role of the Clerk of the State Grand Jury has expanded considerably.
Additionally, civil forfeiture cases may be filed by the Attorney General's Office against real or personal property of a defendant.
A civil forfeiture case involving real property is generally preceded by the filing of a lis pendens in the county where the property is located. The lis pendens will state that any subsequent filings will be made with and maintained by the Clerk of the State Grand Jury.
The Summons and Complaint and all subsequent documents will be filed with the Clerk of the State Grand Jury. The Clerk of the State Grand Jury will give the case a civil file number using the county code "47".
At the conclusion of the civil case, the Clerk of the State Grand Jury will provide the county Clerk of Court with either an Order of Dismissal or a Transcript of Judgment to be enrolled.
In Family Court, juvenile records are considered confidential. However, when a juvenile is bound over to the jurisdiction of the circuit court, the confidentiality provisions do not apply.
Reference: § 63-19-2040
S.C. Code Ann. §17-25-135 provides that, upon conviction of certain offenses, a defendant should be placed on the Central Abuse and Neglect Registry. Specifically, when a defendant is convicted of or pleads guilty or nolo contendere to an "Offense Against the Person" as provided for in Title 16, Chapter 3, an "Offense Against Morality or Decency" as provided for in Title 16, Chapter 15, criminal domestic violence, criminal domestic violence of a high and aggravated nature, or assault and battery of a high and aggravated nature, and the act on which the conviction or guilty plea or nolo contendere is based involved sexual or physical abuse of a child, the court shall order that the person and the nature of the act which led to the conviction or plea be placed in the Central Registry of Child Abuse and Neglect. The judge will indicate on the sentencing sheet if the defendant is ordered to be placed on the registry. A copy of the sentencing sheet and DSS Form 30165 should be forwarded to the Department of Social Services, if ordered. In order for a defendant to be placed on the CAN registry, the presiding judge is required to indicate placement on the CAN registry on the General Sessions Sentence Sheet.
Pursuant to §56-5-2941 of the South Carolina Code of Laws, in addition to the penalties required and authorized to be imposed against a person violating the provisions of §56-5-2930, §56-5-2933, §56-5-2945, the Court must require the person, if he is a subsequent offender and a resident of South Carolina, to have installed on any vehicle the person operates an ignition interlock device designed to prevent the operation of the motor vehicle if the operator has consumed alcoholic beverages. This requirement may be waived by the Court if the offender has a medical condition that makes him incapable of properly operating the installed device.
1. Upon receipt of the form order which is available on the SCDMV's website, www.scdmvonline.com, you will file the original order and send a certified copy of the form to the Department of Motor Vehicles.
Reference § 56-5-2941
A. Issuing Subpoenas
Pursuant to Rule 13(a) of the South Carolina Rules of Criminal Procedure, upon the request of any party, the clerk of court shall issue subpoenas or subpoenas decus tecum for any person or persons to attend as witnesses in any cause or matter in the General Sessions Court. The subpoena shall state the name of the court, the title of the action, and shall command each person to whom it is directed to attend and give testimony, or otherwise produce documentary evidence at time and place therein specified. The subpoena shall also set forth the name of the party requesting the appearance of such witness and the name of counsel for the party if any.
The clerk of court is responsible for issuing all subpoenas in General Sessions Court. This is different from civil matters where attorneys, as officers of the court, are permitted to issue subpoenas.
You may use the subpoena (SCCA 253) provided in the forms section of the Judicial Department’s website.
B. Signing Subpoenas
Rule 13 of the SC Rules of Criminal Procedure requires that the clerk of court issue the subpoena and that the subpoena includes the name of the court, the title of the action, and shall command each person to whom it is directed to attend and give testimony, or otherwise produce documentary evidence at time and place therein specified. The subpoena shall also set forth the name of the party requesting the appearance of such witness and the name of counsel for the party if any. This information should be included on the subpoena before the clerk of court signs the subpoenas.
Additionally, the clerk of court should not use an electronic signature or signature stamp when issuing subpoenas. All subpoenas should be signed by the clerk or their appointed deputy clerk.
A. Post-Conviction DNA Testing Procedure
The 2008 Access to Justice Post‑Conviction DNA Testing Act provides for a post-conviction procedure for state prisoners to petition for DNA testing of physical evidence or biological material, if they have been convicted of or plead guilty to at least one of 24 specific crimes involving death, criminal sexual conduct or armed robbery/burglary with a sentence carrying 10 years or more. The defendant will petition the Court by filing the Application for Forensic DNA Testing (SCCADNA101) with the General Sessions Court or Family Court in which the conviction or adjudication took place pursuant to SC Code Ann. §17-28-40.
1. Make sure the application (SCCADNA 101) is verified by the applicant and file the application under the original indictment number (SC Code Ann. §17-28-40 and §17-28-50).
Please note that pursuant to SC Code Ann. § 17-28-50(D), if the applicant has filed a previous application for DNA testing, the applicant may file a successive application, provided the applicant asserts grounds for DNA testing which for sufficient reason were not asserted or were inadequately raised in the original, supplemental, or amended application. The clerk should bring the application to the attention of the chief administrative judge who will make this determination.
2. Promptly bring the application to the attention of the Chief Administrative Judge for General Sessions and deliver a docketing copy to the solicitor (SC Code Ann. §17-28-50(A)). Note: The attorney general and the appropriate custodian of evidence shall be notified by the solicitor pursuant to SC Code Ann. §17-28-50(A). The victim should be notified pursuant to SC Code Ann. §16-3-1560(F) which provides that the Attorney General reasonably must attempt to notify a victim of all post‑conviction proceedings, including proceedings brought under Chapter 48 of Title 44, and of the victim's right to attend.
3. The solicitor or attorney general should respond to the application within 90 days of the date of the application's filing. Within 90 days after the docketing of the application, or within any further time the court may fix, the victim may respond as provided in SC Code Ann. §16-3-1515.
4. If the Chief Administrative Judge determines that the application is sufficient to proceed to a hearing, the Court will appoint counsel for the applicant if the applicant does not already have counsel appointed in a post-conviction relief proceeding (SC Code Ann. §17-28-60).
5. A hearing will be scheduled by the solicitor for the Court to determine whether the application be dismissed, grant leave to file an amended application or direct that the proceedings otherwise continue (SC Code Ann. §17-28-50).
6. If the Court orders DNA testing pursuant to SC Code Ann. § 17-28-90, the clerk will send a copy of the order to the defendant, solicitor or attorney general, as applicable, and to the Office of Forensic Services at SLED.
If the Court denies DNA testing, the clerk will send a copy of the order to the defendant, solicitor or attorney general, as applicable, and file the order with the original indictment which will close the case.
7. SLED will report to the clerk of court, the applicant, and the solicitor or Attorney General, as applicable, the results of all DNA database comparisons (SC Code Ann. §17-28-100(A)). The clerk should file the results with the original indictment. The results of the DNA test may be used by the applicant, solicitor, or Attorney General as applicable, in any post-conviction proceeding or trial.
- If the results of the DNA test are exculpatory, the applicant may use those results as grounds for filing a motion for a new trial pursuant to the South Carolina Rules of Criminal Procedure. If the applicant does not file for a new trial within one year pursuant to Rule 29 of the Rules of Criminal Procedure, the clerk would then close the case.
- If the results are inconclusive, the Court may allow for additional DNA testing or may dismiss the application. If the Court dismisses the application, the clerk should end the case.
- If the results of the DNA test are inculpatory, the Court shall dismiss the application (SC Code Ann. §17-28-100) and the clerk will end the case.
B. Preservation of Evidence
SC Code Ann. §17-28-320 provides that for certain offenses, evidence should be preserved until the convicted person is released from incarceration, dies while incarcerated or is executed. If the person was convicted or adjudicated on a guilty or nolo contendere plea, the evidence must be preserved for seven years from the date of sentencing, or until the person is released from incarceration, dies while incarcerated or is executed—whichever occurs first, SC Code Ann. §17-28-320(B). A January 9, 2009 memorandum from SC Court Administration provides a summary of the 2008 Post Conviction DNA Procedures Act and may be accessed by clicking on this link 2008 Post Conviction DNA Procedures Act.
C. Custodian of Evidence Registration
Pursuant to SC Code Ann. §17-28-20(2), Clerks of Court are considered to be custodians of evidence under the Preservation of Evidence Act. SC Code Ann. §17-28-330(A) requires the custodian of evidence to register with the SC Department of Corrections or the SC Department of Juvenile Justice after a person is convicted or adjudicated for at least one of the offenses listed in SC Code Ann. §17-28-320. Rule 606 of the SC Appellate Court Rules provides provisions regarding the disposition of exhibits in cases involving crimes listed in the Preservation of Evidence Act and in SC Code Ann. §17-28-30.