O R D E R
RE: Expungement of Criminal Records
This Order supersedes the Order of the Chief Justice dated July 11, 2003, pertaining to the expungement process.
I FIND THAT a lack of uniformity exists statewide in the process for the expungement of criminal records. The implementation of a uniform statewide process for the expungement of criminal records will benefit all parties involved, but primarily those individuals making application for expungement. The purpose of this Order is to establish a procedure for the expungement of criminal records which shall be followed by the Solicitor’s Office in each circuit throughout the State.
THEREFORE, IT IS ORDERED that applications for expungement of all criminal records pursuant to S.C. Code Ann. § 34-11-90(e) (first offense misdemeanor fraudulent check), S.C. Code Ann. § 44-53-450(b) (conditional discharge for simple possession of marijuana or hashish), S.C. Code Ann. § 22-5-910 (first offense conviction in magistrates court), S.C. Code Ann. § 22-5-920 (youthful offender act), S.C. Code Ann. § 56-5-750(f) (first offense failure to stop when signaled by law enforcement vehicle), S.C. Code Ann. § 17-22-150(a) (pretrial intervention), S.C. Code Ann. § 17-1-40, S.C. Code Ann. § 20-7-8525 (juvenile expungements) and any other statutory authorization shall be administered by the Solicitor’s Office in each circuit throughout the State. In exchange for this service, the applicant is responsible for payment to the Solicitor’s Office of an administrative fee in the amount of one hundred fifty dollars ($150.00) per individual order, which shall be retained by that office and used to defray the costs associated with this process. The one hundred fifty dollar ($150.00) fee is non-refundable, regardless of whether the offense is later determined to be statutorily ineligible for expungement or the Solicitor or his designee does not consent to the expungement.
Individuals applying to expunge a criminal record shall obtain a blank expungement order (SCCA 223 or SCCA 492 [in the case of juvenile expungements] both forms bearing a revision date of 1/2006) from the Solicitor's Office in the judicial circuit where the charge was initiated. The forms may be accessed on the Judicial Department's website. The use of these forms is mandatory and to the exclusion of all other expungement forms. The Clerk of Court shall direct all inquiries concerning the expungement process to the corresponding Solicitor's Office to make application for expungement.
The Solicitor’s Office shall implement policies and procedures consistent with this Order and guidelines distributed by the Chief Justice through the Office of South Carolina Court Administration to ensure that the expungement process is properly conducted. This would include, but is not limited to: assisting the applicant in completing the order; collecting from the applicant and distributing to the appropriate agencies separate certified checks or money orders for charges prescribed by this Order; coordinating with the South Carolina Law Enforcement Division (SLED) and, in the case of juvenile expungements, the Department of Juvenile Justice (DJJ), to confirm that the criminal charge is statutorily appropriate for expungement; obtaining and verifying the presence of all necessary signatures; filing the completed expungement order with the Clerk of Court; and providing copies of the completed expungement order to all governmental agencies which must receive the order. The agencies shall include, but are not limited to, the arresting law enforcement agency, the detention facility/jail, the Solicitor’s Office, the Magistrate or Municipal Court where the arrest warrant originated, any Magistrate or Municipal Court that was involved in any way in the criminal process of the charge sought to be expunged, DJJ, and SLED. The Solicitor or his designee must also provide a copy of the completed expungement order to the applicant or, if applicable, retained counsel.
In cases where charges are sought to be expunged pursuant to S.C. Code Ann. §§ 17-22-150(a), 22-5-910 or 44-53-450(b), the Circuit Pretrial Intervention Director or Summary Court Judge must attest by signature on the application to the eligibility of the charge(s) for expungement prior to either the Solicitor or his designee and then the Circuit Court Judge, or the Family Court Judge in the case of a juvenile, signing the application for expungement. In all cases where the expungement of criminal records is sought, SLED shall verify and document that the criminal charge is statutorily appropriate for expungement prior to the solicitor or his designee, and then a Circuit Court Judge, or a Family Court Judge in the case of a juvenile, signing the application for expungement. SLED shall receive a twenty-five dollar ($25.00) certified check or money order from the Solicitor or his designee on behalf of the applicant made payable to SLED for each verification request, except no verification fee shall be charged when expungements are sought pursuant to §§ 17-1-40, 17-22-150(a) or 44-53-450(b). SLED shall then forward the necessary documentation back to the Solicitor’s Office involved in the process. In the case of juvenile expungements, verification and documentation that the charge is statutorily appropriate for expungement must first be accomplished by DJJ, and then SLED. Neither SLED, DJJ, nor any other official shall allow the applicant possession of the application for expungement during the expungement process.
The applicant shall further be responsible to the Clerk of Court for the filing fee per individual order as required by S.C. Code Ann. § 8-21-310 (21), which shall be forwarded to the Clerk of Court by the Solicitor or his designee and deposited in the county general fund. If the charge is determined to be statutorily ineligible for expungement, the pre-paid Clerk of Court filing fee must be refunded to the applicant by the Solicitor or his designee. Each order shall contain only one charge sought to be expunged, except in those circumstances where expungement is sought for multiple charges occurring out of a single incident and subject to expungement pursuant to S.C. Code Ann. §§ 17-1-40 or 17-22-150(a). Only in those circumstances may more than one charge be included on a single application for expungement and only one fee of one hundred fifty dollars ($150.00), and, when applicable, one twenty five dollar ($25.00) SLED verification fee and one thirty five dollar ($35.00) Clerk of Court filing fee will be charged. No filing fee shall be charged by the Clerk’s Office to an applicant seeking the expungement of a criminal record pursuant to S.C. Code Ann. § 17-1-40, where the charge was discharged, dismissed, nol prossed, or the applicant was acquitted.
Nothing in this Order shall preclude an applicant from retaining counsel to apply to the Office of Solicitor on their behalf or for retained counsel to initiate an action in Circuit Court seeking a judicial determination of eligibility when the Solicitor, within his/her discretion, does not consent to the expungement. In either event, retained counsel shall be responsible to the Solicitor or his designee for the one hundred fifty dollar ($150.00) fee, and, when applicable, the twenty five dollar ($25.00) SLED verification fee and the thirty five dollar ($35.00) clerk filing fee, which shall be paid by retained counsel’s client.
The Solicitor or his designee shall have the discretion to waive the one hundred fifty dollar ($150.00) fee only in those cases where it is determined that a defendant has been falsely accused of a crime as a result of identity theft.
Each Solicitor’s Office must maintain a record of all fees collected in exchange for the expungement of criminal records, which shall be made available to the Supreme Court upon its request. Otherwise, those records shall remain confidential.
This Order shall become effective January 16, 2006 and remain in effect unless amended or revoked by Order of the Chief Justice.
|s/Jean Hoefer Toal
Jean Hoefer Toal
December 20, 2005
Columbia, South Carolina
***** Rescinded by Order 2009-07-06-01*****