South Carolina Court Administration
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).
- Immediately upon a disposition of dismissed, nol prossed, or not guilty, the court should complete the expungement application, SCCA 223B, checking the box indicating the statutory basis for the expungement. 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, pursuant to Section 17-1-40.
- The summary court judge should not sign or date the form at this time.
- Obtain the signature of the prosecuting officer, attorney, or affiant on the bottom of the form. This signature does not indicate consent to the expungement, but merely verifies the disposition of this case.
- If the prosecuting agency, entity, or individual files an appeal within 10 days of the disposition, the expungement process should be stopped pending the appeal.
- The legislation provides that the prosecuting agency or appropriate law enforcement agency may object in writing to the expungement within 30 days of the disposition. However, statutory reasons for an objection are limited to the following:
- The accused has other charges pending;
- The prosecuting agency or the appropriate law enforcement agency believes that the evidence in the case needs to be preserved; or
- The accused person’s charges were dismissed as a part of a plea agreement.
- In the event that there is a written objection filed the court must forward the record, including the written objection, to the circuit court with SCCA Form 223C. The circuit court judge will then determine whether the defendant is entitled to have the record expunged. The circuit court judge will complete the form indicating whether or not the record will be expunged, and return that form to the summary court. If the Circuit Court determines that the record should be expunged, the summary court will be responsible for completing the expungement process. The summary court should follow the directive of the circuit court. [17-22-950(B)]
- In the event no written objection is filed with your court, the trial judge should sign and date the order no sooner than 31 days after disposition, and no later than 40 days after disposition.
- The court must then forward certified or true copies of the expungement order to the following agencies.
- SLED via the US Mail at the following: Barbara Davis, PO Box 21398, Columbia, SC 29221. If you have any questions, you may contact Ms. Davis at 803-896-7165.
- The appropriate law enforcement agency which handled the case. (Your court will need to coordinate with your local law enforcement agencies in order to obtain information concerning to whose attention to send the expungement orders and by what method of transmittal, such as the US Mail, facsimile, etc.) In the event the charges were initiated by a courtesy summons, law enforcement should still be provided with the order as they may have incident reports, investigative follow-ups, statements, as well as other records which will need to be expunged.
- The prosecuting agency if prosecuted by an agency other than the arresting law enforcement agency.
- The appropriate detention facility. If the initiating document was a courtesy summons, the detention facility need not receive the order.
- If a traffic case, the order and disposition must be sent to DMV to the attention Shirley Rivers, Post Office Box 1498, Blythewood, SC 29016.
- If a DNR case, the order and disposition must be sent to Lt. Mike Sabaka. This may be done electronically at email@example.com or via facsimile at 803-734-3962. If you have questions, you may contact Lt. Sabaka at 803-734-4048.
- The defendant’s lawyer, if any.
- The defendant.
- The county Clerk of Court. No filing fee shall be charged by the Clerk’s Office to a defendant seeking the expungement of a criminal record pursuant to Section 17-1-40, where the charged was dismissed, nol prossed, or the defendant was acquitted.
- The court should then expunge their records as they normally would, including the public index. The summary court should keep a copy of all expungement orders in a nonpublic location in their office.
- In the event a warrant is completed and then subsequently recalled prior to service, it should also be voided. This will alleviate the need for an expungement of that record.