“You have the right to an attorney. If you cannot afford an attorney, one will be provided for you.” This well-known portion of the Miranda warning addresses criminal defendants’ constitutional right to legal representation under the Sixth Amendment. However, if you have been arrested and charged with a crime, your Sixth Amendment rights do not automatically guarantee you free legal representation by a public defender. Instead, you must demonstrate that you qualify, and you must successfully apply to have a public defender assigned to your case.
In South Carolina, the public defender system is administered by the South Carolina Commission on Indigent Defense (SCCID). The SCCID operates pursuant to Chapter 3 of Title 17 of the South Carolina Code of Laws, which establishes the rights and responsibilities of indigent defendants. If you have been charged with a crime and are interested in having a public defender appointed to represent you, you need to make sure that (i) you qualify and (ii) hiring a public defender is truly in your best interests.
Here are some key facts to consider:
1. Appointment of a Public Defender is Not Automatic
Hiring a public defender to handle your case is not as simple as telling the police that you need an attorney. Section 17-3-10 of the South Carolina Code of Laws states:
“Any person entitled to counsel under the Constitution of the United States shall be so advised and if it is determined that the person is financially unable to retain counsel then counsel shall be provided upon order of the appropriate judge . . . .”
There are two critically important aspects of Section 17-3-10. First, you are only entitled to a public defender if “it is determined” that you lack the financial resources to hire a private attorney. Second, obtaining representation by a public defender requires an order from a judge.
In order to demonstrate that you qualify to have a public defender appointed, you must sign an affidavit which states that you are “financially unable to retain counsel.” The affidavit must also include a list of all of your assets. Under Section 17-3-30 of the South Carolina Code of Laws, “If it appears that [you have] some assets but they are insufficient to employ private counsel, the court, in its discretion, may order [you] to pay these assets to the general fund of the State.” Receiving representation from a public defender also creates a claim against your assets and estate, “in an amount equal to the costs of representation,” unless the judge waives this requirement in his or her discretion.
2. Your Income Must Fall Below the Federal Poverty Level
In South Carolina, a person is only considered “financially unable to retain counsel” if his or her income falls below the federal poverty level—although judges have the discretion to appoint counsel to individuals whose income does not fall below the federal poverty level in some cases. As explained by the SCCID, “To qualify to have an attorney appointed to represent you, a number of factors are considered to determine if you are indigent. Those factors include, but are not limited to, your income, property you may own, the number of people in your household and their income, your debts, and the US Poverty Guidelines.”
For individuals who are single and have no children, the federal poverty level is $12,140 in annual income. If you are married without children, the federal poverty level is $16,460. The federal poverty level increases by approximately $4,000 for each additional member of your family.
3. Public Defenders are Extremely Busy
While many public defenders are very good at what they do, they are also extremely busy. In York County, which has a population of approximately 275,000, there are just 13 public defenders. Statewide, there are approximately 200 South Carolina public defenders. Even with the screening of indigent defendants and the requirement for judicial approval, public defenders often find themselves overwhelmed with cases, and this means that they only have so much time to devote to each individual defendant.
4. Public Defenders Cannot Handle Appeals or Petitions for Post-Conviction Relief
In South Carolina, public defenders are not assigned to handle appeals. As a result, if you are convicted in court and need to appeal your sentence, you will need to hire another attorney. While you may be eligible for representation by the SCCID’s Division of Appellate Defense, this will mean working with a new attorney, and the Division of Appellate Defense only handles about 1,000 appeals statewide each year.
Likewise, public defenders cannot provide representation for petitions for post-conviction relief. These proceedings fall outside of the scope of the SCCID’s services, which are limited to criminal trials and appeals.
5. Even if You are Eligible for a Public Defender, it May Is in Your Best Interests to Hire a Private Attorney
With all of this in mind, even if you are eligible to have a public defender appointed to represent you, it may still be in your best interest to hire a private attorney. This is particularly true if you have been charged with a crime that carries substantial penalties under South Carolina law. When you hire a private attorney, not only do you get to choose who will be fighting for your freedom in court, but you have the opportunity to choose a lawyer who controls his or her own caseload.
When you are facing a criminal charge in South Carolina, your choice of legal representation matters immensely. If you have questions or would like more information about the options that are available to you, we encourage you to contact us for a confidential consultation.
Speak with a Rock Hill, SC Criminal Defense Lawyer in Confidence
Located in Rock Hill, our firm provides legal representation for individuals who are facing criminal charges in York County and the surrounding areas. To discuss your case with one of our criminal defense lawyers, call us at 803-328-8822 or request an appointment online today.
A DUI charge is no laughing matter. Not only could you face criminal charges for the incident, but you could be handed some serious administrative penalties, too. This is why you should seriously consider hiring a DUI lawyer to represent you. The Law Offices of Michael L. Brown, Jr. want you to understand it’s wise to reach out to a DUI attorney for help.
Case Review: DUI lawyers will carefully analyze your DUI case using the police report, your report of the events that happened, and other documents. They’ll assess which factors will hold up well in court and which ones won’t. Taking this into consideration, it’s never unwise to seek out legal counsel for your DUI case.
Legal Speak: DUI law is very complex and can be quite overwhelming for people who don’t work in the legal field. It’s usually not a good idea for you to represent yourself, especially if you’re facing a serious DUI offense.
When in Doubt, Reach Out to a DUI Lawyer: First-time offenders may be tempted to forego the services of a DUI attorney since a plea deal is often offered. But what would you do if things suddenly changed in your case? How would you handle what the prosecution presented? Criminal lawyers are well-versed in the rules of the courts and know how to respond to anything that comes their way.
Get in touch with a DUI lawyer to help you with your drunk driving charge. Contact the Law Offices of Michael L. Brown, Jr. when you need a criminal lawyer in Rock Hill, SC.
As states across the country have moved forward with legalizing both medicinal and recreational marijuana, South Carolina’s legislature has maintained the status quo. As of early 2020, it remains illegal to grow, distribute, or use marijuana in South Carolina in any form and for any purpose.
What about hemp and cannabidiol (CBD)? These are currently legal, but growing, selling, and using hemp and hemp-derived products (including CBD) still isn’t as easy – or as safe, legally speaking – as many South Carolinians would like. Here is an overview of the current state of the law in South Carolina with regard to marijuana, hemp, and CBD legalization.
South Carolina’s Criminal Laws Regarding Marijuana, Hemp, and CBD
1. Marijuana
In South Carolina, possessing any amount of marijuana is a crime. A first offense involving possession of an ounce (28 grams) or less is a misdemeanor that carries up to 30 days in jail and a $200 fine. A second offense involving possession of an ounce or less is also a misdemeanor, but the maximum penalties increase to a year in jail and a fine of $2,000. First-time offenders who participate in a pretrial intervention program may be able to secure a conditional discharge, which will result in their charge being dropped if they satisfy all required conditions.
All other marijuana crimes are felonies in South Carolina. The law divides felony marijuana crimes into two primary categories: (i) sale and trafficking, and (ii) cultivation.
Sale and Trafficking of Marijuana
Less than 10 pounds of marijuana – Up to 5 years in prison and a $5,000 fine
10 to 99 pounds of marijuana (first offense) – Up to 10 years in prison and a $10,000 fine
10 to 99 pounds of marijuana (second offense) – Up to 20 years in prison and a $25,000 fine
10 to 99 pounds of marijuana (third offense) – A mandatory 25-years prison sentence and up to a $25,000 fine
100 pounds or more of marijuana – A mandatory 25-year prison sentence and fines of anywhere from $25,000 to $200,000
Cultivation of Marijuana
Less than 100 plants – Up to 5 years in prison and a $5,000 fine
100 to 999 plants – A mandatory 25-year prison sentence and up to a $25,000 fine
1,000 to 9,999 plants – A mandatory 25-year prison sentence and up to a $50,000 fine
10,000 or more plants – A mandatory 25-year prison sentence and up to a $200,000 fine
In addition to marijuana possession, sale, trafficking, and cultivation, South Carolina law also establishes the crime of driving under the influence of marijuana (also known as a “marijuana DUI” or driving under the influence of drugs (DUID)). Penalties for driving under the influence of marijuana in South Carolina start at up to 30 days in jail and a $400 fine, and they increase substantially for second, third, and fourth-time offenders.
2. Hemp
There has been some confusion about the legality of hemp in South Carolina since the state legislature established the South Carolina Industrial Hemp Program in 2018 – and then terminated it with the Hemp Farming Act of 2019. With the repeal of the South Carolina Industrial Hemp Program, it is actually legal for anyone to grow hemp in the state with a license; however, growers and sellers have recently faced raids as a result of the fact that hemp cannot be distinguished from marijuana except through laboratory testing.
Additionally, last year the South Carolina Attorney General’s Office issued an opinion which stated that, “the mere possession of raw unprocessed hemp or hemp that’s not in a finished hemp product is unlawful if someone does not have a state hemp license.” However, the Attorney General’s Office did not clarify what constitutes “unprocessed” hemp or a “finished hemp product.” As a result, there is still a significant amount of uncertainty as to what growers, processors, distributors, retailers, and users can expect when it comes to law enforcement and prosecution. At this point, the one thing that is clear is that anyone who is charged with a crime involving hemp (including anyone who is falsely charged with marijuana trafficking or possession) should seek advice from an experienced South Carolina criminal defense lawyer promptly.
3. Cannabidiol (CBD)
CBD is legal in South Carolina. It is also legal under federal law. However, the key issue is that, in order for CBD to be legal, it cannot contain any tetrahydrocannabinol (THC). Additionally, similar to hemp and marijuana, there are no observable differences between CBD and THC. As a result, business owners and other individuals may face prosecution for distributing or using CBD based on its indistinguishability from illegal THC.
When purchasing CBD products at wholesale or retail, South Carolina residents must be careful to ensure that they are not buying products that contain THC. Generally speaking, this means buying product that contain CBD oil derived from hemp, not CBD oil derived from cannabis. However, due to the lack of regulation surrounding CBD products at the national level, even reading the labels might not be enough to protect you against unknowingly buying a product that isn’t legal in South Carolina.
What Should I Do if I Have Been Charged with Marijuana Possession, Sale, or Cultivation in South Carolina?
If you have been charged with a marijuana crime in South Carolina, you need to speak with a criminal defense lawyer promptly. Even if you were arrested for selling or using legal hemp or CBD (or you thought you were selling or using legal hemp or CBD), you will still need to mount a successful defense in order to avoid prosecution and sentencing. Presenting an effective defense can be complicated, and the consequences of failing to do so can be severe. In order to give yourself the best chance of avoiding unjust penalties, you should schedule a consultation right away.
Schedule A Free Consultation With Criminal Lawyer in Rock Hill, SC
If you need legal representation for a marijuana case in South Carolina, contact The Law Offices of Michael L. Brown, Jr. for an initial consultation. To speak with a Rock Hill, SC criminal lawyer in confidence as soon as possible, call 803-328-8822 or request an appointment online now.
You can’t believe everything you see on television. While this is true for most types of movies and TV shows, it is especially true when it comes to crime dramas that depict fictionalized criminal trials.
However, these movies and shows have been around for decades; and, as a result, most people have some fundamental misconceptions about what it is really like to stand trial. If you have been charged with a crime in South Carolina, you need to separate fact from fiction, and you need to have a clear and accurate understanding of what you can expect in court.
Fact or Fiction: The Truth Will Prevail if You are Innocent.
Fiction: Innocent people get convicted all the time, and you need to defend yourself regardless of whether the allegations against you are true.
If you have been charged with a crime in South Carolina, you need to defend yourself. There are no exceptions. Even if you are 100% certain that you have not committed a crime, you must still fight to preserve your freedom and your future. The statistics on wrongful convictions in the United States are alarming, and you cannot afford to assume that the truth will prevail.
There is another important factor to consider here as well: Are you absolutely certain that you are innocent? While innocence can be painfully clear in some cases (i.e. if you were charged with murder and didn’t kill anyone), it isn’t always so easy to tell. The South Carolina Code of Laws establishes numerous criminal offenses; and, even if you don’t think you committed a crime, you need to make sure you are certain beyond a shadow of a doubt before you say something that could be used against you in court.
Fact or Fiction: The System Will Get You if You are Guilty.
Fiction: There are multiple ways to successfully defend against criminal charges even if you took all of the steps necessary to commit a crime in South Carolina.
Now, let’s look at the opposite scenario: You have no doubt that you committed a crime. You intended to commit a crime, you carried out the crime, and now you are facing the consequences of your actions. At this point, doesn’t the prosecutor’s office have an open-and-shut case?
Not necessarily. Even if you committed a crime, there are still multiple defenses you may be able to assert in order to avoid a conviction. Under the U.S. Constitution and South Carolina law, many criminal defenses have nothing to do with whether or not the defendant actually committed a crime. If the prosecutor’s office does not have the evidence it needs to prove your guilt (or if the prosecution’s evidence is legally inadmissible), then you are still entitled to an acquittal at trial regardless of the underlying facts of your case.
Fact or Fiction: You Can’t Be Convicted if the Police Didn’t Read Your Rights.
Fiction: It might be possible to have your confession or statement against interest kept out of your trial, and this might help protect you against a guilty verdict.
Under the U.S. Supreme Court’s decision in Miranda v. Arizona, state and county police are required to read your rights prior to conducting a “custodial interrogation.”If the police interrogated you in custody without reading your rights, then you may be able to assert this as a defense in your criminal trial.
However, the key here is that you need to assert this as a defense – no one else is going to do it for you. Additionally, even if prosecutors cannot use your own statements against you, they may still have enough other evidence to convince the jury to side against you.
Fact or Fiction: You Can’t Be Convicted if the Police Stopped or Searched You Without a Warrant.
Fiction: South Carolina police can lawfully conduct warrantless stops, searches, and seizures under various circumstances. If you were stopped or searched illegally, this might provide a defense.
The same basic principles apply if South Carolina or York County police stopped you or searched you without a warrant. While the police are required to obtain a warrant under some circumstances, there are many circumstances under which warrantless stops, searches, and seizures are permitted. If the police stopped or searched you illegally, you will need to raise this as a defense in order to have the illegally-obtained evidence excluded from your trial.
Fact or Fiction: You Can Request a Public Defender When You Go to Court.
Fact: While it is true that you can request a public defender when you go to court, you need to be able to prove that you are “indigent” in order to have one appointed to represent you
It is true that you can request a public defender and that all criminal defendants have the right to legal counsel; however, there are restrictions on who is actually eligible to have a public defender appointed to represent them. The state must determine that you are “indigent,” and going through this process takes time and effort that you could be devoting to your defense. It is also very possible that you will have to deal with various aspects of your case before a public defender is appointed. For these reasons, among others, it is strongly in your best interests to speak with a private criminal defense attorney.
Fact or Fiction: The Prosecutor’s Office has the Burden of Proof.
Fact: In all criminal cases in South Carolina, the prosecutor’s office has the burden of proving the defendant’s guilt “beyond a reasonable doubt.”
This one is absolutely true. In criminal cases, the prosecutor’s office must prove the defendant’s guilt beyond a reasonable doubt. You are innocent until proven guilty; and, if the prosecution cannot convince the jury of your guilt with near absolute certainty, you are entitled to an acquittal.
Speak with a Criminal Defense Lawyer in Rock Hill, SC
Are you facing a criminal charge in Rock Hill, SC? If so, we encourage you to contact us immediately to discuss your case. To speak with a Rock Hill, SC criminal lawyer at The Law Offices of Michael L. Brown, Jr. in confidence, call 803-328-8822 or request an appointment online now.
You were arrested, but you didn’t commit a crime. Or, at least you don’t think you committed a crime. Do you need to be worried? If so, what type of defense do you need to assert in order to avoid being convicted and potentially sentenced to jail time at trial?
Like other states, South Carolina criminalizes what is known as “inchoate” offenses. These are offenses that involve taking steps toward the commission of a substantive crime (such as drug distribution, burglary, or murder), and you can be convicted of an inchoate offense even if: (i) you do not go forward with fully committing the crime; or, (ii) you personally are not present when the crime is committed. As a result, defending against these types of charges requires more than an alibi. The potential for being charged with an inchoate offense also means that you need to be very careful to avoid making statements that seem helpful (i.e. “I changed my mind and didn’t go through with it.”) but that could actually amount to an admission of guilt for an inchoate offense.
Understanding the Charges of Attempt, Conspiracy, and Aiding and Abetting Under South Carolina Law
1. Criminal Attempt in South Carolina
Attempting to commit a crime is itself a criminal offense in South Carolina. While failing to “successfully” commit a crime is one way that you can be charged with an attempt, you do not have to go all the way to trying to take the final step to commit a crime in order to be at risk of conviction.
All criminal offenses are made up of “elements,” and the prosecutor’s office must prove each element of an offense in order to secure a conviction. For the crime of attempt, the basic elements are:
You intended to commit a crime;
You took a “substantial step” toward committing the crime; and,
You failed to commit the crime you intended to commit.
This last element is important because it protects South Carolina residents against being convicted of a substantive crime and attempt to commit that crime (i.e. you generally cannot be convicted of attempted murder and murder for killing a single person); however, the first two elements are what you need to focus on when determining how best to protect yourself against a guilty verdict at trial. For example, arguing that the prosecution cannot prove your subjective intent beyond a reasonable doubt can often be one of the most-effective defenses against a charge for an attempt.
While these are the basic elements of the crime of attempt, various South Carolina criminal statutes establish attempt offenses that are specific to certain types of criminal acts. For example, Section 16-3-29 of the South Carolina Code of Laws defines attempted murder as follows:
“A person who, with intent to kill, attempts to kill another person with malice aforethought, either expressed or implied, commits the offense of attempted murder.”
The penalty for attempted murder is up to 30 years of imprisonment without the possibility of probation or a suspended sentence.
For many types of drug crimes, the penalties for attempt are up to one half of the maximum penalty for the full commission of the attempted offense. Under Section 44-53-420 of the South Carolina Code of Laws:
“(A) Except as provided in subsection (B), a person who attempts or conspires to commit [a drug-related offense], upon conviction, [shall] be fined or imprisoned in the same manner as for the offense planned or attempted; but the fine or imprisonment shall not exceed one half of the punishment prescribed for the offense, the commission of which was the object of the attempt or conspiracy.
(B) A person who attempts to possess a substance made unlawful by the provisions of this article is guilty of a misdemeanor and, upon conviction, must be fined not more than five hundred dollars or imprisoned not more than thirty days, or both.”
2. Criminal Conspiracy in South Carolina
Under South Carolina law, the crime of conspiracy is defined as, “a combination between two or more persons for the purpose of accomplishing an unlawful object or lawful object by unlawful means.” Breaking this down into elements, in order to secure a conspiracy conviction, the prosecutor’s office must prove:
You were party to a “combination” (i.e. an arrangement or agreement) with at least one other person; and,
You intended to commit an illegal act or achieve an unlawful objective (an unlawful “purpose”).
Unlike the definition of a criminal conspiracy under federal law and the laws of many other states, in South Carolina, an “overt act” toward commission of the intended crime is not an element of the offense. Additionally, while an agreement is one way to establish a “combination,” no evidence of a formalized agreement is required under South Carolina law.
Conspiracy is a felony offense in South Carolina carrying up to a $5,000 fine and five years of imprisonment. However, the penalties imposed cannot exceed those for the substantive crime that was the purpose of the conspiracy.
3. Aiding and Abetting in South Carolina
The crime of aiding and abetting involves assisting or encouraging someone else to commit a crime. This is commonly referred to as being an “accomplice” or “accessory.” Similar to attempt, aiding and abetting offenses are defined in relation to the specific underlying crimes. For example, under South Carolina’s prostitution statute, Section 16-15-90 of the Code of Laws, someone who “aid[s] or abet[s] prostitution knowingly” is subject to the same penalties as someone who engages in prostitution.
Similar to attempt and conspiracy, subjective intent is an element of aiding and abetting. If the prosecution cannot prove that you knew you were involved in the commission of a crime and that you intended to help facilitate the successful commission of the crime, then you are not guilty of the inchoate offense.
Schedule Free Consultation with Experienced Criminal Defense Lawyer in Rock Hill, SC
Have you been charged with attempt, conspiracy, or aiding and abetting in South Carolina? To speak with Rock Hill, SC criminal defense lawyer Michael L. Brown in confidence, call 803-328-8822 or request a consultation online now.
If you have been arrested in South Carolina, it is important for you to understand what will happen next. Being arrested is a serious matter, and while it does not necessarily mean that you will be charged with a crime, it does mean that you need to be extremely careful and make informed decisions in order to protect yourself. The following is an overview of the criminal justice process after an arrest in South Carolina. For a confidential, one-on-one consultation with a Rock Hill, SC criminal lawyer, call 803-328-8822 now.
What Should You Expect After You are Arrested in South Carolina?
1. ReadingYourMiranda Rights
At the time of your arrest, the arresting officer might read your Miranda rights. However, it is also possible that the police will not read you your rights – if at all – until you are taken in for questioning. Under the U.S. Supreme Court’s decision in Miranda v. Arizona, the police are only required to read a suspect’s rights prior to conducting “custodial interrogation,” and this can mean different things under different circumstances.
As a result, you should pay close attention to when – and if – the police read you your rights. If you are interrogated in custody without being given the Miranda warning, then your statements to the police may be inadmissible in court.
2. Booking at the Police Station or County Jail
Once you are arrested, you will be taken in for booking. You can either be booked at the local police station or at the county jail. The booking process creates a formal record of your arrest, and typically involves the following procedures:
Recording your identifying information (name and address) and the crime for which you were arrested;
Taking your photograph and fingerprints;
A full body search and surrendering your personal belongings as possible evidence; and,
A check for any outstanding warrants for your arrest.
You are entitled to legal representation during the booking process, and you are not required to provide any information other than your name and where you live. Any other information that you provide voluntarily can be used against you – even if you have not received the Miranda warning.
3. Bond Hearing
After booking, the next step in the criminal justice process in South Carolina is the bond hearing. Your bond hearing should be scheduled within 24 hours of your arrest. During your bond hearing, the judge will determine whether you are, “a danger to the community or . . . likely to run away before trial.” If the judge deems you a danger to the community or a flight risk, then the bond will be denied and you will be taken into custody pending trial. If the judge decides that bond is appropriate, you may be able to post various types of bonds in order to avoid going to jail. These include:
In cases involving serious criminal offenses, the next stage after the bond hearing is to appear for what is known as a “preliminary hearing.” However, in order to schedule a preliminary hearing, you must file a formal request within 10 days of your bond hearing.
At this stage, your case may also go before a grand jury. The grand jury’s role is not to determine innocence or guilt, but rather to determine if there is sufficient evidence for the prosecutor’s office to press charges. If the grand jury finds sufficient cause, it will issue a “true bill,” which will result in an indictment. If it finds the insufficient cause, it will issue a “no bill” and you will not be formally charged.
5. Discovery
While your criminal case is pending, your attorney will be able to file a motion with the court to request “discovery.” This is the process used to obtain the state’s evidence that it intends to use against you at trial. Conducting effective discovery is critical to presenting a successful defense, and you will want to give your attorney as much time as possible to request and review the state’s evidence against you.
6. First Appearance
Your next court appearance is formally referred to as your “first appearance” (or “roll call”), although it is possible that you and/or your attorney may have already appeared in court more than once already. Your first appearance will be scheduled within 45 days of your arrest, and you must appear in order to avoid having a bench warrant issued for you to be taken into custody.
7. Second Appearance
Next, your “Second Appearance” will be scheduled within 120 days of your arrest. This is when you will enter your plea and request a jury trial. Similar to your First Appearance, if you fail to show up on your court date, the judge can order you to be sent to jail pending trial.
Having conducted discovery to learn about the state’s case against you, at this point your attorney may recommend negotiating a plea or seeking placement in a pre-trial intervention (PTI) program. Placement in a PTI program is an option for some first-time offenders; and, if you are eligible and you successfully complete the program, your charge will be dismissed. If PTI is not an option, then your attorney may work to negotiate a plea that results in you admitting guilt but accepting a lesser sentence than you would likely face if you took your case to trial.
9. Trial
If a favorable plea deal is not on the table, your criminal defense attorney will take your case to trial. If the judge or jury rules in your favor, your charge will be dismissed and you will be free to leave. However, if you are found guilty, the judge will sentence you pursuant to South Carolina law.
10. Appeal and Petition Post-Conviction Relief
Finally, if you are found guilty, you may be able to challenge your conviction by filing an appeal or a petition for post-conviction relief. These are specialized legal procedures that are subject to complex rules and may have strict timeframes. If you get convicted, you should discuss your options with an attorney right away.
Arrested in Rock Hill, SC? For Free Consultation Contact Our Criminal Attorneys
If you have been arrested for a crime in South Carolina, it is important that you speak with a criminal defense attorney immediately. To discuss your case with a criminal lawyer at the Law Offices of Michael L. Brown, Jr. in Rock Hill, SC, call 803-328-8822 or tell us how to reach you online now.
