B.
Jurisdiction and Venue in Criminal Matters

1. Jurisdiction

In South Carolina, jurisdiction, the basic authority of a court to hear and exercise judgment over a criminal matter, is based upon two considerations; territorial jurisdiction, and subject matter jurisdiction.

a. Territorial Jurisdiction

(1) Magistrates

A magistrate is limited as to the territorial area in which he may exercise his authority. This is known as "territorial jurisdiction" in contrast to "subject matter jurisdiction" which will be discussed at a later point.
The S.C. Supreme Court stated in State ex rel. McLeod v. Crowe, 272 S.C. 41, 47, 249 S.E.2d 772, 776 (1978) that:

Sections 1 and 23 of Article V (of the S.C. Const.) require that the jurisdiction of magistrates must be uniform throughout the State. Such uniformity can only be accomplished through legislation which grants all magistrates uniform countywide jurisdiction.

All magistrates, therefore, now constitutionally possess county wide territorial jurisdiction in both criminal and civil cases. Opinion of the Attorney General dated November 18, 1978.

(2) Municipal Judges

The territorial jurisdiction of a municipal court is limited to the boundaries of the municipality.

b. Subject Matter Jurisdiction

The general jurisdictional statute for the magistrates is S.C. Code Ann. 22-3-550. This section provides that magistrates shall have jurisdiction "of all offenses which may be subject to the penalties of a fine or forfeiture not exceeding five hundred dollars, or imprisonment not exceeding thirty days, or both." In addition to the criminal penalties, this section allows a magistrate to 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." Section 22-3-550 (A). Subsection (A) also provides that a 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. In addition, a magistrate may convert any unpaid restitution, fines, costs, fees, surcharges, and assessments to a civil judgment as provided in 17-25-323(C). Please see the Memoranda Section of this book regarding the procedure of conversion of a criminal fine to a civil judgment.

Subsection (B) prohibits a magistrate from sentencing any person to consecutive terms of imprisonment totaling 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). "Further, a magistrate must specify an amount of restitution in damages at the time of sentencing as an alternative to any imprisonment of more than ninety days which is lawfully imposed." Section 22-3-1000 provides that "[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." If there is no limit to the punishment of an offense in a particular criminal statute or in the relevant general penalty statute, then a magistrate does not have jurisdiction over the matter.

The general jurisdictional statute for municipal courts is 14-25-65. Subsection (A) of this section provides that municipal judges shall also have jurisdiction of all offenses which may be subject to the penalties of a fine or forfeiture not exceeding five hundred dollars or imprisonment not exceeding 30 days, or both. Subsection (B) provides that a municipal judge 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. This section further provides a municipal judge may hold a party in contempt for failure to pay the restitution ordered if the judge finds the party has the ability to pay. An order of restitution issued by a municipal judge may be appealed within thirty days. The order of restitution may be appealed separately from an appeal, if any, to the conviction. Section 22-3-1000. Finally, 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). Please see the Memoranda Section of this book regarding the procedure of conversion of a criminal fine to a civil judgment.

Under section 14-25-45 each municipal court has jurisdiction to try all cases arising under the ordinances of the municipality in which it is located.

c. Transfer Cases

Section 22-3-545 provides for the transfer of certain criminal cases from general sessions court.

". . . a criminal case, the penalty for which the crime in the case does not exceed five thousand five hundred dollars or one year imprisonment, or both, either as originally charged or as charged pursuant to the terms of a plea agreement, may be transferred from general sessions court if the provisions of this section are followed." Section 22-3-545(A).

If the defendant objects to the solicitor transferring his case, he may object to the chief judge for administrative purposes in the judicial circuit where the charges are pending, the trial judge, or the solicitor. Before accepting the defendant's guilty plea, the trial judge must receive an affirmative waiver by the defendant, if present, of his right to have the case tried in general sessions court. The defendant may waive any of the rights in Section 22-3-545(B)(1) in writing before the impaneling of the jury of the acceptance of the defendant's guilty plea. See Section 22-3-545(B)(1).

Under subsection (B)(2), any case which is transferred from general sessions court to a magistrate's court which is not "disposed of in one hundred eighty days from the date of transfer automatically reverts to the docket of the general sessions court."

Section 22-3-545(C) provides that: "All cases transferred to the magistrate's or municipal court must be prosecuted by the solicitor's office. The chief magistrate of the county or the chief municipal judge of the municipality, upon petition of the solicitor, shall set the terms of court and order the magistrates and municipal judges to hold terms of court on specific times and dates for the disposition of these cases." In cases transferred from general sessions court, the state may only be represented by a solicitor or an assistant solicitor even during plea negotiations and guilty plea proceedings. In the Matter of Lexington County Transfer Court, 334 S.C. 47, 512 S.E.2d 791 (S.C. 1999). Magistrates and municipal judges whose counties or municipalities utilize transfer court should contact the Chief Administrative Criminal Court Judge for coordination purposes.

Under subsection (D), the solicitor's office must make the provision for an adequate record. Subsection (E) provides that "all fines and assessments imposed by a magistrate. . . presiding pursuant to this section must be distributed as if the fine and assessment were imposed by a circuit court pursuant to Sections 14-1-205 and 14-1-206. This section must not result in increased compensation to a magistrate presiding over a trial or hearing pursuant to this section or in other additional or increased costs to the county."

The Supreme Court ruled in State v. Rushton, 322 S.C. 188, 470 S.E.2d 847 (S. C. 1993), "[s]ection 22-3-545 makes no provision for direct appeals to this court. Accordingly, S. C. Code Ann. Section 18-3-10, which states that anyone convicted before a magistrate 'of any offense whatever' may appeal to the court of common pleas, would apply, and cases transferred pursuant to Section 22-3-545 must be appealed to the court of common pleas."

d. Exclusive Versus Concurrent Jurisdiction

The Code provides that the magistrate's jurisdiction shall be "exclusive" in some areas. That is, in these areas, only the magistrate (and, by implication the municipal judge) has jurisdiction. State v. Brown, 201 S.C. 417, 23 S.E.2d 381 (1942). In other cases, the magistrate and municipal judge will have "concurrent" jurisdiction -- he or she shares jurisdiction over these cases with the circuit court or municipal court.

Section 22-3-540 provides that magistrates (and by implication, municipal judges) have exclusive jurisdiction over all criminal cases in which the punishment does not exceed a fine of one hundred dollars or imprisonment for thirty days. The section also creates exceptions to this exclusive magisterial jurisdiction.

When a person is charged with having committed an offense within the jurisdiction of a magistrate or municipal judge and having committed an offense within the jurisdiction of the court of general sessions, the magistrate or municipal judge and court of general sessions have concurrent jurisdiction over the lesser charge. The court of general sessions can hear both the greater and the lesser offenses together, or it can hear only the greater and send the lesser offense to the magistrate or municipal judge.

When an offense within the jurisdiction of the court of general sessions is reduced to a lesser included offense within the jurisdiction of the magistrate or municipal court, such as with a negotiated guilty plea, the court of general sessions may dispose of the case itself or send the case to the magistrate or municipal judge. State v. McClenton, 59 S.C. 226, 37 S.E. 819 (1901).

Apart from the exception discussed above, 22-3-540 provides for the exclusive jurisdiction of the magistrate (and, by implication, municipal) courts over criminal cases in which the punishment does not exceed a fine of one hundred dollars or imprisonment for thirty days.

Magistrates and municipal judges have concurrent jurisdiction over state criminal offenses which occur within a municipality. Jurisdiction vests in the court which the matter is properly brought without regard to the law enforcement agency which seeks a warrant. The court in which the action is initiated should perform all necessary functions regarding the case (e.g. holding preliminary examinations or conducting trial). There should be no transferal of cases between magistrate court and municipal court. A transfer of a case should occur only when a municipal court is presented with a valid request for a change of venue.

The only exception to this rule that all judicial functions be performed by the court in which the action is initiated, is the setting of bail. In those unusual instances in which a judge of the initiating court is unavailable, and unreasonable delay in presenting defendants to a judicial officer will occur, it would be proper for a judge of the non-initiating court to set bail. This should only be done upon request of the initiating court, and with careful coordination between the two courts. (Order of Chief Justice J. Woodrow, Lewis, October 31, 1979).

2. Venue

a. Magistrate

Venue differs from jurisdiction in that jurisdiction refers to the court's power to hear and determine a case, whereas venue designates the place where a case should be heard. For venue to be proper in a criminal case, the action must be brought before the magistrate with territorial jurisdiction over the area where the offense was committed.

The change of venue statute, 22-3-920, provides the means by which the prosecutor or the accused in a criminal case, believing for a substantial reason that he would be unable to secure a fair trial from the magistrate before whom the matter is to be heard, may have his case moved to the nearest magistrate not disqualified.

The party seeking the change of venue must file an affidavit with the magistrate before whom the case was to be heard stating the applicant's belief that he cannot get a fair trial before that magistrate and setting forth sufficient reasons for such a belief. To satisfy this requirement, the reasons must be set forth with definiteness and certainty - a mere opinion is not sufficient. If the affidavit contains sufficient fact to justify the belief that a fair trial cannot be had, a change of venue is mandatory. Brown and Parker v. Kalb, 92 S.C. 309, 75 S.E. 529 (1912). The papers should then be turned over to the nearest magistrate who is not disqualified from hearing the case, so that he may proceed as if the case had been originally filed with him. Section 22-3-920 points out specifically that "one such transfer only shall be allowed each party in any case."

Changes of venue may be sought for a variety of reasons, from emotional factors preventing the drawing of an impartial jury to the personal knowledge or involvement of the magistrate before whom the action was brought; but in every case, the change should only be granted where reasons sufficient to justify a belief that a fair trial is not possible are alleged in the affidavit.

In addition, it should be noted that the Code of Judicial Conduct enumerates a number of instances in which the magistrate must disqualify himself/herself even if no motion for a change of venue has been made. (See GENERAL, Provisions applicable to both civil and criminal cases, change of venue and disqualification).

b. Municipal Judge

If a municipal judge must disqualify himself/herself, either under the change of venue statute (which may be applicable to municipal courts by 14-25-45) or under the Code of Judicial Conduct (which is certainly applicable to municipal judges), an interim judge may be appointed in place of the disqualified judge. (See 14-25-25 for specific mechanics of this appointment). If the actual place of trial must be changed because of prejudicial pre-trial publicity, for example, there are no statutory provisions for change of venue of this sort. Since it would be rare that the place of trial would have to be changed for a municipal court trial, the problem would best be approached with the cooperation of the parties.