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TO:            Summary Court Judges

FROM:      Tiffany B. Raines, Staff Attorney

RE:            Act No. 36, Summary Court Expungement Process

DATE:       July 20, 2009

On June 2, 2009, Governor Sanford signed into law Act No. 36, addressing the process for expungement of criminal records in both the circuit and summary courts. This legislation has a significant impact on the summary courts, specifically Section 17-22-950, which requires that, as of June 2, 2009, the summary courts are responsible for expunging the records of all criminal cases disposed in those courts pursuant to Section 17-1-40 (dismissed, nol prossed, or in which the defendant is found not guilty at trial). "Criminal cases" has been interpreted to include Title 56 (traffic) and Title 50 (DNR) which are disposed of pursuant to Section 17-1-40. Additionally, any fraudulent check charges which are dismissed upon the payment of restitution and the administrative fee pursuant to Section 34-11-70(b) & (c) must also be expunged. The legislation requires that no fee may be charged for the expungements pursuant to Section 17-1-40 in the summary courts.

In all other cases, the Solicitor’s Office will be responsible for processing expungements for ultimate approval by a circuit court judge. If a case in your court is dismissed or nol prossed as a result of the defendant entering a conditional plea pursuant to Section 44-53-450 (conditional discharge), entering Pre Trial Intervention, a Traffic Education Program, or the Alcohol Education Program, the Solicitor’s Office is required to process the expungement. Any General Sessions charges which are dismissed at a preliminary hearing by a magistrate or municipal judge must also be processed for expungement through the Solicitor’s Office. Finally, the Solicitor’s Office will be responsible for processing expungements in those cases in which a criminal conviction is expunged pursuant to Section 22-5-910, which allows first offenses in summary courts to be expunged three years after conviction.

In the event individuals seek to have records expunged pursuant to Section 17-1-40, which were disposed of prior to June 2, 2009, the summary courts will be responsible for handling these expungements at no cost to the defendant. However, your courts are only responsible for initiating the expungement process for those charges disposed of on or after June 2, 2009.

The following is an outline of the Summary Court expungement process as required by 17-22-950(A).