RE: Pretrial Diversion Programs
O R D E R
I FIND THAT the unauthorized use of pretrial diversion programs is occurring in our courts, and clarification is necessary to ensure conformance with the statutory law of this State.
THEREFORE, IT IS ORDERED THAT pursuant to S.C. Code Ann. § 17-22-10 et seq., only solicitors of this State are authorized to establish a pretrial intervention program. Accordingly, no other agency, municipality, county government, or member of the judiciary, either circuit, municipal, or magistrate, shall establish, recognize by use, refer, or permit the referral of any offender to any other pretrial intervention or other diversion program resulting in the non-criminal disposition of any offense not addressed in this Order or approved by the solicitor. Only solicitors are statutorily authorized to effect a non-criminal disposition of a charge pending against an offender in the event that offender successfully completes an authorized pretrial intervention program. Accordingly, a magistrate, municipal, or circuit court judge has no authority to effect a non-criminal disposition of any charge based on the completion of a diversion program without the consent of the solicitor. Finally, no magistrate, municipal, or circuit court judge shall issue an order directing the destruction of any official records relating to an offender’s arrest without the written consent of the solicitor or his designee verifying the offender has successfully completed the pretrial intervention program operated by the solicitor or any other diversion program that has been approved for use by the solicitor.
IT IS FURTHER ORDERED THAT solicitors may approve for use by a court, diversion programs that are not a part of the solicitor’s pretrial intervention program.
IT IS FURTHER ORDERED THAT S.C. Code Ann. § 44-53-450, authorizes a magistrate, municipal, or circuit court judge to dismiss or conditionally discharge certain first offense drug offenses upon terms and conditions as it requires. Pursuant to S.C. Code Ann. § 44-53-370(b)(3), this pretrial diversionary practice requires the consent of the solicitor in the judicial circuit where the court sits.
IT IS FURTHER ORDERED THAT magistrates and municipal judges shall not refer defendants to any pretrial diversionary programs designed to reduce points on a defendant’s driver’s license unless the program fully complies with S.C. Code Ann. § 56-1-770. That statute requires that the defendant be adjudicated guilty and assessed points against his driver’s license prior to entering the National Safety Council’s “Defensive Driving Course” or its equivalent. The course must be taught by an instructor accredited by the National Safety Council and the course must be approved by the Department of Public Safety. Magistrates and municipal judges shall not charge a fee to the defendant for referral to an approved course.
Nothing in this Order alters a magistrate’s or municipal judge’s authority when suspending a sentence under S.C. Code Ann. § 22-3-800.
This Order shall become effective immediately and remain in effect unless amended or revoked by Order of the Chief Justice.
s/ Jean Hoefer Toal
Jean Hoefer Toal
September 12, 2003
Columbia, South Carolina