||Magistrates and Municipal Judges
||Robert McCurdy, Senior Staff Attorney
||July 7, 2008
Code §22-5-110 requires that any misdemeanor charge sought by non-law enforcement personnel must be issued, upon a finding of probable cause, on a courtesy summons. Pursuant to Code §22-5-115, a courtesy summons is a criminal charging document to be used where a citizen, rather than a law enforcement officer, requests the arrest of a person for allegedly committing a summary court level offense. The statute does not allow for a custodial arrest when serving the courtesy summons. The individual must be given a court date by the law enforcement officer serving the document and allowed to proceed. This Office has developed the following procedure for you to follow when utilizing these documents. Please contact this Office should you have questions.
1. Courtesy summons (SCCA 519), authorized by Code §22-5-115, is issued in lieu of arrest warrant when affiant is not a law enforcement officer investigating the case. If law enforcement officer serves as affiant, arrest warrant must be used.
2. Only offenses within the jurisdiction of magistrate and municipal court (currently $500, 30 days, or both) may be written on a courtesy summons. General Sessions charges must be written on an arrest warrant.
3. Affiant must provide sworn statement establishing probable cause that the alleged crime was committed by the defendant. Summary court judge undergoes same analysis as if determining whether to issue an arrest warrant.
4. Courtesy summons must be approved by Attorney General (approved December 22, 2005) and must contain the following:
a) an affidavit that establishes probable cause;
b) a description of the charges against the defendant;
c) the date, time, and place of the trial;
d) the name of the issuing officer;
e) the defendant's and affiant's name, address, and telephone number;
f) the date and location of the incident; and
g) notice that the defendant may be tried in his absence or a bench warrant may be issued for his arrest.
5. Law enforcement must serve courtesy summons personally upon defendant.
6. Courtesy summons may not be used for custodial arrest. Upon service, defendant must be given a court date and allowed to proceed without being placed into custody.
7. Court in each jurisdiction must set predetermined date(s) each month for disposal of cases charged on courtesy summons.
8. Law enforcement serving courtesy summons should be given several courtesy summons trial dates in advance of service. Service officer must write date of trial on courtesy summons upon service, giving defendant at least 10 days notice prior to trial.
9. Defendant may request a bench trial or jury trial. Standard of proof at trial is "beyond a reasonable doubt."
10. If defendant is convicted at trial, defendant must be booked so that the criminal disposition may be forwarded to SLED. Booking should be included as a requirement of the sentence. Booking may take place at the site of trial or at a law enforcement/detention facility. SCCA/699, Order of Booking, may be used to facilitate this process. Upon conviction, the Order should be completed indicating a specific date and time for defendant to appear at detention facility for booking. A copy of the Order should be given to the defendant and a copy faxed to the detention facility. Upon completion of the booking process, detention facility should complete bottom portion of Order and return to court. If defendant fails to comply with booking procedures within the required time limit, detention facility should contact court and a bench warrant may be issued for defendant's arrest.
11. If defendant is found not guilty at trial, defendant is free to go without undergoing the booking process.
12. If defendant fails to appear at trial, he may be tried in his absence and, if convicted, a bench warrant shall be issued for defendant’s arrest. At this point in the criminal proceeding, a custodial arrest is warranted. If the court has an accurate mailing address for the defendant, it may be prudent to send the defendant a letter prior to issuing the bench warrant notifying him of the consequences of his failure to appear and allowing him a certain amount of time to willingly surrender to the court.
13. The courtesy summons is a numbered, three part form consisting of a copy for the court, a copy for the defendant, and an audit copy. These documents may also be generated locally by computer. The computer-generated courtesy summons must be identical to SCCA 519 and approved by this Office prior to its use. Upon approval, groups of numbers will be given to the requesting party for the computer-generated courtesy summons. The numbers are identical to warrant numbers accept the sequence of numbers is followed by “CS” to differentiate it from an arrest warrant.
14. It is strongly recommended that you meet with local law enforcement to develop a coordinated plan to implement this procedure.