Stand Your Ground and Self-Defense Law in SC

Stand Your Ground and Self-Defense Law in SC

What are the rules for self-defense in South Carolina, and how does South Carolina’s Stand Your Ground law work? 

You have a legal right to defend yourself, but the rules for how and when you are permitted to defend yourself can be different from state to state. In one state, you could avoid arrest altogether, while in another state you could find yourself in jail awaiting trial for murder under the exact same set of facts. 

In this article, you will learn the basics of self-defense in South Carolina, including:

  • The elements of self-defense,
  • The rules for “defense of others,”
  • What the Castle Doctrine is, and
  • How South Carolina’s stand your ground law works.

What are the Rules for Self-Defense in South Carolina?

In any jurisdiction, you may find yourself arrested and charged with murder (or assault and battery) even though you followed the rules.  Self-defense is, unfortunately, often your defense at trial rather than the prosecution’s reason for leniency before trial. 

This is why every person should know the basics of self-defense and whether your state has a stand your ground law – you never know when you will have to defend yourself. Self-defense is often used in response to a sudden and unexpected situation, and your goal is not only to defend yourself, or others, from an attacker, but also to avoid arrest and prosecution.

The Elements of Self-defense in South Carolina

There are four elements of self-defense in South Carolina. If you raise the defense of self-defense and the prosecution can’t disprove one or more of these elements beyond a reasonable doubt, jurors must acquit you at trial. They are as follows:

1. You were “without fault in bringing on the difficulty” – you cannot instigate or attack another person and then claim self-defense;

2. You were, or you believed that you were, “in imminent danger of losing [your] life or sustaining serious bodily injury;”

3. “[A] reasonably prudent man of ordinary firmness and courage” would have believed they were in imminent danger if they were in your place – your belief that you were in danger must be objectively reasonable; and

4. There was “no other probable means of avoiding the danger” – before South Carolina’s stand your ground law was passed, there was a duty to retreat unless you were in your own home.

In every case where it applies, South Carolina’s stand your ground law replaces self-defense law in South Carolina. The most important distinction between stand your ground laws and the “old” elements of self-defense law in South Carolina is that element #4, “no other probable means of avoiding the danger,” no longer applies. 

There is no longer a “duty to retreat” in South Carolina if you are attacked in a place where you have a legal right to be, whether that is your home, your business, the sidewalk, or the corner grocery.  

The Castle Doctrine

What is the “Castle Doctrine?” 

Before South Carolina’s stand your ground law was passed, you had a duty to retreat before defending yourself – everywhere except in your own home

The Castle Doctrine is the idea that “your home is your castle,” and you should never be required to retreat from your own castle. If you are forced to defend yourself in your own home, that is where you make your stand to defend yourself, your family, and your property.

Defense of Others

“Defense of others” is another common-law principle that is similar to self-defense. If you see someone else being attacked, you have the right to defend that person to the same extent that they would have had the right to defend themselves. 

Just as an individual has the right to make their stand and defend themselves against attack under South Carolina’s Stand Your Ground Law, you also have the right to defend another person who is being attacked – without first attempting to retreat. 

On the other hand, if you misunderstood that situation, and the person you are defending was not acting lawfully, defense of others may not be an available defense.

Burden of Proof

Once you have raised self-defense, the State has the burden of disproving, beyond a reasonable doubt, at least one of the elements listed above.

South Carolina’s Stand Your Ground Law

South Carolina’s stand your ground laws essentially codified and expanded the Castle Doctrine and self-defense law, removing the duty to retreat if you are attacked outside of home. 

South Carolina’s stand your ground law is also called the “Protection of Persons and Property Act.”

South Carolina’s Protection of Persons and Property Act

The South Carolina Protection of Persons and Property Act replaces the common law elements of self-defense and defense of others described above. The stand your ground law made three important changes to South Carolina’s rules for self-defense:

1. You no longer have a duty to retreat if you are attacked in any place where you have a legal right to be and if there is a reasonable fear of death or great bodily injury to either yourself or another person. You can hold your ground and defend yourself.

2. If a person is “in the process of unlawfully and forcefully entering, or has unlawfully and forcibly entered a dwelling, residence, or occupied vehicle, or if he removes or is attempting to remove another person against his will from the dwelling, residence, or occupied vehicle,” then there is a presumption that someone who uses deadly force against them has “a reasonable fear of imminent peril of death or great bodily injury to himself or another person.”

3. A person who uses deadly force pursuant to the stand your ground law is immune from criminal prosecution or civil actions. If they can make a prima facie case that they are immune from prosecution, they are entitled to a hearing where the court will determine whether the stand your ground law applies before they are subjected to a trial.

South Carolina’s self-defense laws still apply, but, in most cases, they must now be interpreted in the context of the Protection of Persons and Property Act – there is no longer a duty to retreat, the “reasonable fear” element of self-defense is presumed when someone is forcibly entering your house or vehicle, and you are immune from prosecution if the Act applies to your situation.

Questions About Self-defense in South Carolina?

If you have been charged with a crime in South Carolina, get an experienced criminal defense lawyer on your side immediately who can begin preparing your defense, work to get your case dismissed, negotiate on your behalf, and try your case to a jury when necessary. 

Call 843-761-3840 or use this form to contact us today to discuss your case and start working towards the best possible outcome for you.

Ready To Speak With An Attorney?

Let’s discuss the details of your case and see if we can help.

Where Can You Carry a Concealed Weapon in SC?

Where Can You Carry a Concealed Weapon in SC?

The answer depends on whether you have a concealed weapon permit (CWP) or not. A CWP in South Carolina allows you to carry a concealed weapon in most places, although there is a long list of locations that are prohibited. 

Without a CWP, your options for where you can carry a concealed weapon are extremely limited. 

Whether you have a concealed weapon permit or not, it is important that you know the rules because, if you are carrying a concealed weapon in a prohibited area, you may be subject to arrest and prosecution for unlawful carrying of a handgun. 

In this article, you will learn:

  • What a concealed weapon permit is in South Carolina,
  • How to get a concealed weapon permit in South Carolina,
  • Where you can carry a concealed weapon with a CWP,
  • Where you cannot carry a concealed weapon, and 
  • The potential penalties for unlawful carrying of a handgun in South Carolina. 

Concealed Weapons in South Carolina

Where can a concealed weapon be carried in South Carolina? 

Do you have a concealed weapons permit? If you have a CWP, you can carry a concealed weapon anywhere – but – there are many exceptions that we will discuss below.

If you do not have a CWP, your options are limited. 

Where Can I Carry a Firearm in South Carolina if I Do Not Have a CWP? 

South Carolina gun laws make it a crime to carry a firearm in South Carolina unless you fall into one of the exceptions listed in the statute. I won’t list all of the exceptions here, but the most important ones for most people include:

  • If you have a CWP (but see the exceptions below);
  • If you are in your home or on your property, you can carry a handgun and it doesn’t matter if it is open carry or concealed;
  • If you are at your place of business (that you own), you can carry a handgun and it doesn’t matter if it is open carry or concealed;
  • If you are on someone else’s property, in their home, or at their place of business and you have their permission, you can carry a handgun and it doesn’t matter if it is open carry or concealed;
  • You can carry a handgun in your vehicle, but only if it is secured in a closed glove box, center console, trunk, or container in the luggage compartment; and
  • You can carry a handgun on your motorcycle if it is secured in a saddlebag or other container attached to the bike. 

What happens if police see a handgun on your person or on the floorboard of your car? Keep reading to find out.

Concealed Weapon Laws in South Carolina

If you are convicted of unlawful carrying of a handgun in South Carolina, police will confiscate your weapon and you are not likely to get it back from them. It is also a misdemeanor offense that carries up to a year in prison, a fine of $1000, or both. 

Other firearm violations, like the sale of a firearm to a prohibited person, possession of a stolen handgun, or felon in possession of a handgun, are felony offenses that are punishable by up to five years in prison. 

Is South Carolina an Open Carry State? 

South Carolina is not an open carry state. 

Whether you have a CWP or not, you are not permitted to open carry unless you are on your own property, you have the permission of the property owner, or are in the process of hunting/fishing.

Concealed Weapon Permits in South Carolina

How can you avoid an arrest for unlawful carry? Know the gun laws in South Carolina, and get a concealed weapon permit. Let’s look at how you apply for a CWP, and what the rules are for a CWP in South Carolina. 

How to Apply for a CWP in South Carolina

You are required to take a firearms safety class before SLED will issue a CWP – in many cases, your instructor will help you to complete the remaining steps to apply for your permit. 

SLED will require you to provide them with:

  • An application,
  • Your photo ID,
  • Proof of residency,
  • Proof of 20/40 vision or better,
  • Documentation that you completed the required firearms training,
  • A fingerprint card from your local sheriff’s office, and
  • A $50 application fee. 

If you meet all requirements, SLED must issue the permit. If they deny the permit, there is an administrative appeal process with strict deadlines – contact your attorney for help appealing the decision. 

Where You Can Use Your CWP

Your CWP allows you to carry a concealed firearm in any location except those listed below. South Carolina is not an open carry state, so the weapon must be concealed at all times. 

Where You Cannot Use Your CWP

SC Code Section 23-31-215 (M) contains a list of the locations where firearms are prohibited, even with a CWP, including:

  • Police stations,
  • Prisons,
  • Jails,
  • Polling places,
  • Offices or business meetings of counties, municipalities, or public school districts,
  • School athletic events,
  • Churches without permission,
  • Hospitals or medical offices without permission, and
  • Any place that is marked with a sign prohibiting concealed weapons. 

A violation of this section is a misdemeanor punishable by up to one year in prison and revocation of the concealed weapon permit for 5 years. 

Questions About Concealed Weapons in South Carolina? 

If you have been charged with a crime under South Carolina’s gun laws, get an experienced criminal defense lawyer on your side immediately who can begin preparing your defense, work to get your case dismissed, negotiate on your behalf, and try your case to a jury when necessary. 

Call 843-761-3840 or use this form to contact us today to discuss your case and start working towards the best possible outcome for you.

Ready To Speak With An Attorney?

Let’s discuss the details of your case and see if we can help.

DUI in SC: 1st, 2nd, 3rd, 4th & Subsequent Offenses

DUI in SC: 1st, 2nd, 3rd, 4th & Subsequent Offenses

Charged with DUI in SC?

Whether this is your first experience with SC’s criminal justice system, or you’ve been here before, it can be confusing and stressful. People often wonder: Am I going to jail? Will I lose my license? Is this going to be on my criminal record for the rest of my life?

If you have been charged with DUI in SC, your first step should be to get an experienced DUI defense lawyer on your side immediately, so they can answer questions specific to your case and begin preparing your defense. You may have defenses you don’t know about, and your case could end with a dismissal, a negotiated plea to a lesser traffic offense, or an acquittal after trial.

In this article you will learn:

  • The basics of DUI laws in South Carolina,
  • How DUI offenses are defined,
  • How South Carolina’s implied consent laws may affect your case, and
  • The potential penalties that you will face if you are convicted of a DUI offense.

Introduction to DUI Charges

DUI, or driving under the influence, can be a serious offense in South Carolina. If you have been charged with DUI in South Carolina, you have a tough road ahead. If you are here reading this article, you’re on the right track – you are learning about what you’ve been charged with and what it means.

In this article, we are going to look at the basic nuts and bolts of DUI in South Carolina. First, what is DUI, and how is it defined in South Carolina law?

What is DUI in SC?

DUI in South Carolina  is defined in SC Code Section 56-5-2930, which makes it a crime to:

1. Drive,

2. While under the influence of alcohol, any drug, or a combination of alcohol and drugs,

3. To the extent that your “faculties to drive a motor vehicle are materially and appreciably impaired.”

Each of these three elements must be proven beyond a reasonable doubt before you can be convicted of DUI in South Carolina. For example, if you are not driving, you are not guilty. If you are just sitting in your car listening to the radio, or even if you are passed out at the wheel with the engine running and the transmission in gear, you are not driving. This is not to say that you can’t be charged with DUI in this instance because you can! You are still “operating” the vehicle.

The State must prove not only that you were under the influence, but that you were under the influence to the extent that your abilities to drive were “materially and appreciably impaired.” People are often surprised when I tell them, “It’s not illegal to drink and drive.” It’s illegal to drink and then drive if your ability to drive is materially and appreciably impaired.

Implied Consent Law

South Carolina’s implied consent laws cause confusion for many who are charged with DUI. South Carolina law says if you drive in our state, you impliedly consent to give a breath or blood sample to law enforcement if they suspect you are DUI.

You can refuse to give a breath or blood sample, but they will suspend your license if you refuse. On the other hand, if you give a breath sample and the blood alcohol content (BAC) is .15% or greater, they will still suspend your license. And, if the machine says that your BAC is .08% or greater, they will use it as evidence against you at your trial.

Implied consent proceedings are separate from the criminal case – they are in a separate administrative court, and, if you lose the implied consent hearing or do not request an implied consent hearing, you can be punished twice with license suspensions or ignition interlock device (IID) requirements.

What’s the Legal Limit in South Carolina?

We often say that, technically, there is no “legal limit” for DUI in South Carolina. But:

  • If you are charged with DUI, a breath or blood sample result of .08% or greater creates an “inference” that you were under the influence, and
  • If you are charged with DUAC (driving with an unlawful alcohol concentration), the State only needs to prove that your blood alcohol content was .08% or greater, which they can do by presenting evidence of your breath or alcohol test results to a jury.

Felony DUI with Death or Great Bodily Injury

Felony DUI is the most serious DUI offense in South Carolina, and it is charged when someone is seriously injured or killed as a result of a DUI-related accident.

If you are charged with felony DUI in SC, the State must prove that:

  • You were driving,
  • You were under the influence of alcohol, drugs, or a combination of alcohol and drugs,
  • You committed an “act forbidden by law or neglect[ed] any duty imposed by law in the driving of the motor vehicle” (for example, a traffic violation like speeding or running a red light), and
  • The violation that you committed was the proximate cause of death or great bodily injury to another person.

DUI Penalties

The potential penalties for DUI in South Carolina increase based on the number of DUI-related convictions you have had within the past 10 years. For example, if you had a DUI conviction in 2012, and you are convicted of another DUI in 2021, the 2021 DUI would be a second offense with harsher penalties.

 

Below is a chart that contains the potential penalties for DUI or DUAC 1st, 2nd, 3rd, or 4th and subsequent offenses, including the mandatory minimum penalties. Note that the penalties increase based on the breathalyzer or blood test results:

 

Charge of DUI or DUAC BAC Level Offense Classification

Penalty 

(does not include court costs and assessments)

Mandatory IID License Suspension
1st Offense < .10% misdemeanor

Fine = $400

OR

Jail = 48 hours to 30 days

None 6 months
1st Offense .10-.15% misdemeanor

Fine = $500

OR

Jail = 72 hours to 30 days

BAC .15% or more requires 6 successful months

Depends on BAC:

 

.10-.14% = 6 months

.15 % or more = indefinite suspension with IID

1st Offense >.15% misdemeanor

Fine = $1,000

OR

Jail = 30 to 90 days

6 successful months to get license back Can only drive pursuant to the Ignition Interlock Device Program
2nd Offense <.10% misdemeanor

Fine = $2,100-$5,100

AND

Jail = 5 days to 1 year

2 years Can only drive pursuant to the Ignition Interlock Device Program
2nd Offense .10-.15% misdemeanor

Fine = $2,500-$5,500 (can’t be suspended lower than $1,100)

AND

Jail = 30 days to 2 years

2 years Can only drive pursuant to the Ignition Interlock Device Program
2nd Offense >.15% misdemeanor

Fine = $3,500-$6,500 (can’t be suspended lower than $1,100)

AND

Jail = 90 days to 3 years

2 years Can only drive pursuant to the Ignition Interlock Device Program
3rd Offense <.10% misdemeanor

Fine = $3,800-$6,300

AND

Jail = 60 days to 3 years

3 years Can only drive pursuant to the Ignition Interlock Device Program
3rd Offense .10-.15% misdemeanor

Fine = $5,000-$7,500

AND

Jail = 90 days to 4 years

3 years Can only drive pursuant to the Ignition Interlock Device Program
3rd Offense >.15% misdemeanor

Fine = $7,500-$10,000

AND

Jail = 6 months to 5 years

3 years  – or If the 1st conviction occurs within 5 years then 4 years IID Can only drive pursuant to the Ignition Interlock Device Program
4th or Subsequent Offense <.10% felony Jail = 1-5 years Life Can only drive pursuant to the Ignition Interlock Device Program
4th or Subsequent Offense .10-.15% felony Jail = 2-6 years Life Can only drive pursuant to the Ignition Interlock Device Program
4th or Subsequent Offense >.15% felony Jail = 3-7 years Life Can only drive pursuant to the Ignition Interlock Device Program

 

Other Penalties for DUI in SC

Jail time is only one of the consequences of a DUI conviction. Other negative consequences can follow you for the rest of your life. For example:

  • DUI convictions cannot be expunged in South Carolina – 30 years from now, potential employers may still reject you because there is a DUI on your record.
  • After a DUI conviction or implied consent violation, you must enroll in ADSAP (the alcohol and drug safety action program) before you are allowed to drive again.
  • You will be required to carry expensive SR-22 insurance for three years, and, if your insurance lapses even once, the requirement will be extended.
  • You may be required to install an ignition interlock device (IID), which requires you to blow into a breathalyzer before your vehicle’s ignition will work.
  • Many employers will reject applicants who have a DUI on their record – it’s a potential liability, especially if the job requires driving. If there are multiple applicants for a job, and one has a DUI conviction while another does not, who are they going to hire?
  • The financial consequences for a DUI conviction involve more than just a fine – ADSAP, SR-22, and IID requirements all cost money, as well as the lost opportunities when potential employers reject you because of a DUI on your record.

Felony DUI with Great Bodily Injury or Death

The potential penalties for felony DUI are much greater than those for “ordinary” DUI offenses, and a conviction will usually involve substantial prison time:

  • Felony DUI with death carries a mandatory minimum of 1 year and up to 25 years in prison and a fine between $10,100-$25,100, and
  • Felony DUI with great bodily injury carries a mandatory minimum of 30 days and up to 15 years in prison and a fine between $5,100-$10,100.

A Note on Judicial Discretion

Judges have a lot of leeway as to the length of a person’s sentence after a DUI conviction, and the length of the sentence can vary depending on your criminal history and the mitigation that your attorney collects and presents to the court.

On the other hand, judicial discretion has its limits. Judges have no discretion when it comes to:

  • Mandatory minimum sentences,
  • IID requirements,
  • License suspensions,
  • ADSAP, or
  • Expungement of your record (you cannot expunge a DUI in SC).

It is critical that you consult with an experienced DUI defense lawyer immediately after you are charged and before your initial court date so that you avoid a DUI conviction whenever possible.

We cannot promise results to any client, but we can do everything that is legally and ethically within our power to get our client’s case dismissed, win their case at trial, and avoid a lifetime of negative consequences from a DUI conviction.

Questions About DUI in SC?

If you have been charged with DUI in SC, get an experienced DUI defense lawyer on your side immediately who can begin preparing your defense and ensure that you do not miss important deadlines.

Call 843-761-3840 or use this form to contact us today to discuss your case and start working towards the best possible outcome for you.

Ready To Speak With An Attorney?

Let’s discuss the details of your case and see if we can help.

Arson Laws in SC

Arson Laws in SC

What are the arson laws in South Carolina? Arson is when you set fire to something, right? 

Hold on – the definitions of arson contained in South Carolina criminal law are a bit more detailed and complex than that. Understanding them – as well as what the State must prove to get a conviction – could make the difference between a dismissal, an acquittal, a probationary sentence, or life in prison. 

In this article you will learn:

  • The basic elements of arson laws in South Carolina;
  • What the State must prove to get a conviction; and
  • The potential penalties for arson 1st, 2nd, and 3rd degree.

Arson Laws in South Carolina – 1st, 2nd, and 3rd Degree Arson

The arson laws in South Carolina define the elements of 1st, 2nd, and 3rd degree arson, but there are also some important definitions for some of the terms used in South Carolina’s arson laws. 

For example, the arson laws reference “damage” – it’s not arson unless the fire or explosion results in damage to the property that was targeted. But what is “damage?”

What is “Damage” for Purposes of Arson Laws in SC?

SC Code Section 16-11-110 provides a broad definition of damage that includes just about any change to the targeted property that was caused by the fire or explosion – any “burning, charring, blistering, scorching, smoking, singeing, discoloring, or changing the fiber or composition of” any property that is covered by arson laws in SC.

What is a “Dwelling House” for Purposes of Arson Laws in SC?

Another definition that could make a difference in some cases is “dwelling house,” which is defined by SC Code Section 16-11-10

Arson laws in South Carolina use the same definition that is used in burglary cases: any “dwelling house, any house, outhouse, apartment, building, erection, shed or box in which there sleeps a proprietor, tenant, watchman, clerk, laborer or person who lodges there with a view to the protection of property,” as well as any “houses, outhouses, buildings, sheds and erections which are within two hundred yards of it and are appurtenant to it or to the same establishment of which it is an appurtenance.”

The 3 Degrees of Arson in South Carolina

1st Degree Arson

What does the State have to prove to get a conviction for arson? 

Arson 1st degree is where a person:

1. Willfully and maliciously,

2. Causes an explosion or sets fire to,

3. A building, structure, or property,

4. Resulting in damage to the property, and

5. It results, either directly or indirectly, in death or serious bodily injury to a person.

To get a conviction, the prosecutor must prove each and all of these elements beyond any reasonable doubt. 

You don’t have to set off an explosion or start a fire yourself to be convicted of Arson 1st, 2nd, or 3rd degree – you can also be convicted if you aided, counseled, or procured a burning by helping someone else set the fire. 

The types of property covered by 1st degree Arson include:

  • Dwelling houses,
  • Churches or places of worship,
  • Schools,
  • Manufacturing plants,
  • Warehouses,
  • Businesses,
  • Any institutional facilities,
  • Local and municipal buildings,
  • Any structure that is designed for human occupancy,
  • Any building or structure not listed above,
  • Railway cars,
  • Boats,
  • Ships,
  • Any type of watercraft,
  • Aircraft,
  • Automobiles or any type of motor vehicle, or
  • Personal property.

It doesn’t matter if the property belongs to the person who is accused or if it belongs to someone else – if you set fire to your own property, you can still be convicted of arson.

2nd Degree Arson

Arson 2nd degree is where a person

1.Willfully and maliciously,

2. Causes an explosion or sets fire to,

3. A building, structure, or property,

4. Resulting in damage to the property.

As with 1st degree arson, it doesn’t matter who the property belongs to and you can also be convicted if you aided, counseled, or procured a burning by helping someone else set the fire. 

The types of property covered by 2nd degree Arson include:

  • Dwelling houses,
  • Churches or places of worship,
  • Schools,
  • Manufacturing plants,
  • Warehouses,
  • Businesses,
  • Any institutional facilities,
  • Local and municipal buildings, or
  • Any structure that is designed for human occupancy.

The difference between 1st and 2nd degree arson is that no death or injury is required for a 2nd degree arson conviction, and the types of property that are covered by 2nd arson include only the first half of the list that is covered by 1st degree arson – the other types of properties that were covered by 1st degree Arson are covered by 3rd degree Arson.

3rd Degree Arson

Arson 3rd degree is where a person:

1. Willfully and maliciously,

2. Causes an explosion or sets fire to,

3. A building, structure, or property,

4. Resulting in damage to the property.

As with 1st or 2nd degree arson, it doesn’t matter who the property belongs to and you can also be convicted if you aided, counseled, or procured a burning by helping someone else set the fire. 

The types of property covered by 3rd degree arson include:

  • Any building or structure not covered by 2nd degree arson,
  • Railway cars,
  • Boats,
  • Ships,
  • Any type of watercraft,
  • Aircraft,
  • Automobiles or any type of motor vehicle, or
  • Personal property.

The difference between 3rd degree and 1st degree Arson comes down to whether a person was killed or injured, and the difference between 3rd degree and 2nd degree Arson is the type of property that was affected.

Arson Laws in SC: Potential Penalties

The chart below contains the range of potential penalties for 1st, 2nd, and 3rd degree arson in SC:

Charge Felony or Misdemeanor Potential Prison Sentence
1st Degree Arson Felony Mandatory minimum sentence of 30 years up to life in prison
2nd Degree Arson Felony Mandatory minimum sentence of 3 years and up to 25 years in prison
3rd Degree Arson Felony Up to 15 years in prison

 

Arson, along with Murder and Burglary 1st degree, is one of the most serious criminal charges in the state of South Carolina. Note that the potential penalties for Arson 1st Degree are exactly the same as those for Murder, which is 30 years to life.

Questions About Arson Laws in SC?

If you or your loved one has been charged with arson in South Carolina, get an experienced criminal defense attorney on your side immediately who will investigate your case, prepare your defense, and engage the right expert witnesses when appropriate. 

Call 843-761-3840 or use this form to contact us today to discuss your case and start working towards the best possible outcome for you.

Ready To Speak With An Attorney?

Let’s discuss the details of your case and see if we can help.

How to Appeal a Felony Conviction

How to Appeal a Felony Conviction

The procedures for appeals in SC are complex and unforgiving – at every stage in the process, there are strict deadlines. If a deadline is missed, your appeal could be dismissed before the appellate court even hears your case, or you could be prohibited from even filing an appeal.

To make matters worse, there are different rules and procedures for different types of appeals in SC – the rules for appealing a felony conviction in General Sessions Court are different than the rules for appealing lower court convictions, civil judgments in Common Pleas Court, post-conviction relief (PCR) proceedings, or decisions in the Administrative Courts. 

In this article, you will learn:

  • How to appeal a felony conviction from General Sessions Court,
  • What a notice of appeal is,
  • What happens after you win or lose your appeal, and
  • What other options are available for post-conviction relief.

First, let’s take a look at the basic components of an appeal from SC’s General Sessions Court.

How to Appeal a Felony Conviction

In this article, we are specifically talking about criminal convictions in SC’s General Sessions Court – the procedure for misdemeanor convictions in SC’s General Sessions Court is the same as the procedure for how to appeal a felony conviction. 

What matters is that this process, which applies to any criminal conviction in General Sessions Court, is different than the process for misdemeanor appeals from the magistrate or municipal courts.

Deadline for Notice of Appeal

The first critical deadline that you have when filing any appeal is the Notice of Appeal. If you do not file your Notice of Appeal within the deadline, your appeal will be rejected by the appellate court and they will not hear your case.

Although there are some exceptions, your Notice of Appeal must be filed within ten days of the conviction or within ten days of receipt of the trial court’s ruling on any post-trial motions that have been filed (do not file the Notice of Appeal until after the trial court rules on post-trial motions).

Who Files the Notice of Appeal?

If you contact us immediately after your conviction, we may file the Notice of Appeal on your behalf. In most cases, however, your trial attorney (or plea attorney) will file the Notice of Appeal – they are required to file the Notice when you ask them, so make sure you are clear that you want to file a Notice of Appeal and put it in writing to your attorney if possible. 

The Notice of Appeal must be filed in both the Court of Appeals and the Court of General Sessions, and the Rules require that the Notice (as well as other filings) be submitted in a specific format and served on all parties to the case.

Other Deadlines in the Appeal Process

The time limit for the Notice of Appeal is only the first in a series of deadlines that must be met during the appeal process. Other deadlines, documents that must be filed, what must be included in them, and the format in which they must be filed, are outlined in the appellate court rules, including deadlines for:

  • Ordering the transcripts of all proceedings and notifying the appellate court,
  • Notification to the court when the transcripts are received,
  • Filing of the Initial Briefs,
  • Filing of the Designation of Matter to be included in the Record on Appeal,
  • Filing the Record on Appeal, and
  • Filing of the Final Briefs.

The Procedure for a Criminal Appeal from General Sessions Court

What is the procedure for a criminal appeal? Although the process may vary slightly from case to case, the basics include:

  • Filing the Notice of Appeal,
  • Ordering the transcripts from the trial and other court proceedings,
  • Review of the transcripts and other documents and researching the legal issues that we will raise with the appellate court,
  • Drafting the Initial Brief that outlines the legal issues and why the appellate court should reverse the conviction,
  • Review of the State’s Answer to your Initial Brief and researching, drafting, and filing a Reply when appropriate,
  • Compiling and filing the Record on Appeal,
  • Filing the Final Briefs, which should be identical to the Initial Briefs except the Final Briefs will contain the proper citations to the Record on Appeal,
  • Oral arguments (although the appellate may choose to decide the case without oral argument), and
  • Waiting….

When I Appeal a Felony Conviction How Long Does It Take?

An appeal from a criminal conviction will not be resolved quickly. It could take a year or more. If the case is appealed to higher courts or if other post-conviction remedies are pursued, it could take multiple years before you have a final answer.

There is no Rule that says how long the appellate court has to make their decision – once the briefs are filed and the case has been argued, we wait.

What Issues Can I Raise When I Appeal a Felony Conviction?

In your appellate briefs, you will outline specific issues for the Court that you believe were decided wrongly in the trial court (or plea court). But what issues can you raise in a criminal appeal? 

In a direct appeal, you can only raise errors of law made by the judge. If there are mistakes that were made by the defense attorney, they have to be raised in a separate PCR action (that is usually not filed until after the appeals are finished). 

A direct appeal – an appeal from the Circuit Court (General Sessions) to the Court of Appeals – can only raise issues that relate to mistakes made by the judge. 

For example, if your attorney makes a pretrial motion to suppress a bag of cocaine found in the trunk of your car because the police violated your Fourth Amendment rights during the search, and the trial court denies your attorney’s motion, that may be an error made by the judge that you can raise on direct appeal. 

Or, if your attorney objects to a state’s witness’ testimony about your prior convictions for murder, and the trial court overrules your attorney’s objection, that may be an error made by the judge that you can raise on direct appeal. 

In PCR, or post-conviction relief proceedings – a separate lawsuit that you would ordinarily file after your direct appeal has been denied or when there are no grounds for a direct appeal, you can raise issues that relate to your attorney’s performance (ineffective assistance of counsel). 

For example, if there were grounds to suppress the bag of cocaine found in the trunk of your car, but your attorney never made the motion, you cannot raise this on direct appeal. But you may be able to allege ineffective assistance of counsel in a PCR action later. 

Or, if a state’s witness testifies about your prior murder conviction, and your attorney does not object, you cannot raise this on direct appeal. But you may be able to allege ineffective assistance of counsel in a PCR action later.

Errors committed by the trial attorney are typically only raised in PCR proceedings (or habeas review in the federal court), while errors committed by the judge are raised on direct appeal.

What Happens After the Appeal?

What happens after the appeal? 

Win or lose, is it over? It might be, but not necessarily…

If You Win Your Appeal

If the Court of Appeals agrees with you that the trial court made a mistake, that does not automatically mean that your case is over. In most cases, it also does not mean that your charges are dismissed (although it could, if directed verdict should have been granted or if the trial court must now suppress key evidence in your case). 

Depending on the facts of your case, the next steps could be:

  • The state might appeal the Court of Appeals decision to the next-higher court, in which case the process will begin again in the SC Supreme Court. Or the state might choose not to appeal the Court of Appeals’ decision.
  • If the state does not appeal further, the case might be remanded (sent back to the trial court) for a new trial, which means you return to the county jail to await a second trial unless you are granted bond. You are back at square one, and any charges that the state dismissed in consideration of the guilty verdict or guilty plea may be reinstated as well.
  • If a directed verdict was an issue on appeal, the case could be remanded with instructions to grant a directed verdict – if this happens your case is over unless you have additional charges pending.
  • If suppression of evidence was an issue on appeal, the case could be remanded with instructions to suppress the evidence – if this happens your case might be over if the evidence suppressed was critical to the state’s case, or you may be facing a retrial where the jurors do not hear about the suppressed evidence or testimony.
  • If the only issue on appeal was sentencing, your case could be remanded for resentencing only.

What happens next depends on the issues that were raised on appeal, what the appellate court orders as relief, and whether the state chooses to appeal further to the SC Supreme Court.

If You Lose Your Appeal

If you lose your criminal appeal, that is also not necessarily the end of your case. You may have multiple options that include:

  • Asking the Court of Appeals to reconsider their decision when appropriate,
  • Appealing the Court of Appeals’ decision to the SC Supreme Court,
  • Filing a post-conviction relief (PCR) action in the Court of Common Pleas, and
  • Filing a habeas petition asking the federal court to review the state courts’ decision (although federal habeas has strict requirements which include “exhaustion” of all state remedies).

The bottom line is, win or lose, there is a real possibility that your case may not be over. And, even if you win, you may have to continue the fight in the trial court.

Questions About Criminal Appeals?

If you believe that you have grounds for an appeal from a felony conviction in SC, get an experienced criminal appeals attorney on your side immediately who can help you to navigate the complex rules of SC appellate procedure.

Call 843-761-3840 or use this form to contact us today to discuss your case and start working towards the best possible outcome for you.

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