South Carolina does not have mandatory sentencing guidelines for misdemeanors or felonies. The judge has wide discretion to determine the appropriate sentence. The judge may weigh any relevant factor including the offender’s criminal history and the circumstances of the offense.
The Greenville criminal defense attorneys at Bannister, Wyatt & Stalvey, LLC explain South Carolina felony misdemeanor and sentencing guidelines.
Does South Carolina use sentencing guidelines?
South Carolina has not adopted guidelines for felony or misdemeanor criminal sentencing. There is no grid or chart that judges must follow when determining an offender’s sentence.
While S.C. Code § 24-26-10 establishes a South Carolina Sentencing Guidelines Commission, their recommendations have not been formally adopted.
What does it mean that South Carolina has not adopted sentencing guidelines?
Because South Carolina has not adopted sentencing guidelines, the sentencing judge has sole discretion to determine a sentence. They must follow statutory minimums and maximums.
Because the judge has such wide latitude, a defendant must take special care to approach their sentencing hearing prepared to argue mitigating circumstances and address aggravating factors suggested by the prosecution.
Criminal Sentencing in South Carolina
While sentencing guidelines do not apply, a defendant can still understand how sentencing works and prepare for their sentencing hearing.
South Carolina categorizes most felonies and misdemeanors based on the severity of the offense. Some offenses are exempt from the classification system.
Felonies – Categories and Maximum Incarceration
|Kidnapping; robbery; attempted murder; robbery while armed with a deadly weapon; criminal sexual conduct – first degree
|Drug trafficking; manslaughter
|Criminal sexual conduct – second degree; carjacking; aggravated assault and battery; attempted armed robbery
|Burglary – second degree; stalking; accessory after the fact of a more serious felony; criminal sexual conduct with a minor – third degree
|Witness intimidation; bribery; domestic violence – first degree; assault and battery – first degree; spousal sexual battery; some possession and distribution controlled substances offenses
|Voter fraud; brandishing a firearm; subscribing to false or fraudulent tax return
Misdemeanors – Categories and Maximum Incarceration
|Possession of cocaine, first offense, fail to stop for law enforcement vehicle – first offense, driving while license canceled, suspended or revoked – third or subsequent offense
|Possession of certain controlled substances, possessing drugs without a prescription, certain alcohol distribution offenses
|Assault with concealed weapon, graffiti vandalism – second offense, domestic violence – second degree
Some crimes in South Carolina are exempt from the felony and misdemeanor classification system. These offenses have possible penalties that are determined by law for that offense. A judge may sentence within the prescribed range, following mandatory minimum and maximum periods of incarceration.
Examples of exempt offenses in South Carolina include:
- Child abuse causing death
- Criminal sexual conduct with a minor in the first degree
- Burglary – first degree
- Sex offender failure to register
- Child endangerment
- Violation of childcare facilities requirements
- Accessory to a crime
Note: In many states, the designation for a felony, as opposed to a misdemeanor, is whether the offense is punishable by one year or more in prison. In South Carolina, this is not the case. Class A misdemeanor offenses are punishable by up to three years incarceration.
Understanding Criminal Sentencing in South Carolina
One goal of the criminal justice system is to provide sentences that are just. Some discretion in sentencing is tolerable and even necessary to account for the specifics of an offense. However, it would be a miscarriage of justice for two people, similarly situated, to receive disparate sentences from the criminal justice system.
To solve this problem, many states have implemented sentencing guidelines. These guidelines are usually in the form of a chart. The chart accounts for the offender’s criminal history and variables that quantify the offensive nature of the criminal act. The judge determines what variables apply, and the chart produces a sentencing range. For states using the chart, the judge must stay within the range of sentences recommended, unless an exception applies.
Again, South Carolina has not adopted sentencing guidelines.
The South Carolina Sentencing Guidelines Commission has recommended sentencing guidelines. However, these recommendations have not been adopted. A defendant can’t rely on them to predict a period of incarceration for their case.
Aggravating and mitigating factors for criminal sentencing in South Carolina
Although there are no sentencing guidelines that judges must follow, judges will take the totality of the circumstances into account when fashioning a sentence. The judge may consider:
- The defendant’s criminal history
- Whether the defendant was on probation or parole at the time of the offense
- If a weapon was involved, terrorism or a breach of the public peace
- The number of victims, extent of harm to victims
- Whether the offender exploited a vulnerable victim
- If the offender was a leader of multiple conspirators
- Extent of injury to the victim
- Feasibility of rehabilitative services
- The offender’s employment history and contributions to the community
- Other mitigating factors
The judge may consider any relevant factor when determining the appropriate sentence. Each side can make arguments and present information at sentencing. The rules of evidence do not apply at a sentencing hearing.
Talk to a Lawyer – Get Legal Help
Even though South Carolina doesn’t have felony and misdemeanor sentencing guidelines, an attorney can help you understand the sentence you may receive in your case. To talk to a lawyer, contact our team at Bannister, Wyatt & Stalvey, LLC at (864) 920-2709.