A conditional discharge is a type of pretrial diversion in SC that allows a person to get their charges dismissed and expunged without going to trial.
How does it work?
Below, I’ll discuss SC law on conditional discharges, including:
- The procedure for getting a conditional discharge,
- How a conditional discharge works in magistrate, municipal, and General Sessions courts, and
- The types of offenses that are eligible for a conditional discharge in SC.
Conditional Discharge for Drug Offenses in SC
Conditional discharges are most often used for simple possession of marijuana offenses, but they can be used for any first-offense simple possession drug case.
SC Code § 44-53-450 allows for a conditional discharge when a person is charged with simple possession of any drug under SC Code § 44-53-370 (c) or (d) or § 44-53-375 (A), which includes all controlled substances including:
- Crack cocaine,
- Ecstasy or Molly, and
- Prescription drugs.
The Procedure for a Conditional Discharge in SC
How do you get a conditional discharge?
First, it is in the court and the prosecutor’s discretion – you don’t have a right to a conditional discharge. But, in most cases where a person has no prior convictions and they are charged with simple possession, it will be an available option.
To receive a conditional discharge, you must plead guilty or be convicted at trial (most judges are not going to give you a conditional discharge after trial, but it is possible). § 44-53-450 says that:
…the court, without entering a judgment of guilt and with the consent of the accused, may defer further proceedings and place him on probation upon terms and conditions as it requires, including the requirement that such person cooperate in a treatment and rehabilitation program of a state-supported facility or a facility approved by the commission, if available. Upon violation of a term or condition, the court may enter an adjudication of guilt and proceed as otherwise provided. Upon fulfillment of the terms and conditions, the court shall discharge the person and dismiss the proceedings against him. Discharge and dismissal under this section shall be without court adjudication of guilt and is not a conviction for purposes of this section or for purposes of disqualifications or disabilities imposed by law upon conviction of a crime, including the additional penalties imposed for second or subsequent convictions.
In actual practice, however, the procedure for getting a conditional discharge varies depending on the court that you are in….
Conditional Discharges in Magistrate or Municipal Court
The process is relatively informal in most magistrate and municipal courts.
In most cases, if the prosecutor and court agree to the conditional discharge, you will be required to complete a set amount of community service hours, provide documentation of your hours worked to the court, and then your case is dismissed and expunged (there is also a fee that must be paid).
There is no formal probation, and there is usually no counseling required.
What happens if you don’t complete the community service hours?
If you entered a formal plea (as you are supposed to pursuant to the statute), the court can then sentence you – your case is over, and there is a conviction on your record.
If you did not enter a formal plea, however, the court cannot legally sentence you, and you may still be able to take your case to trial (although the magistrate or city judge may disagree, and you might need to file an appeal to enforce your rights).
Conditional Discharges in General Sessions Court
If your case is in General Sessions Court (and if the prosecutor cannot or will not agree to remand the case to the magistrate court for a conditional discharge), the procedure is more involved.
You will most likely enter a guilty plea, you will be placed on probation, you will need to complete the community service requirements, counseling requirements (if any), or other requirements of the probation office including payment of supervision fees, and, once you have finished all requirements, your case is reopened, dismissed, and you can get the charges expunged.
Disorderly Conduct Conditional Discharges
Although most people think of conditional discharges in the context of simple possession charges, you can also get a conditional discharge in SC for disorderly conduct charges in the magistrate court.
SC Code § 16-17-530 allows conditional discharges for public disorderly conduct offenses if the person has “not previously been convicted of an offense pursuant to this section or any similar offense under any state or federal statute relating to drunk or disorderly conduct.”
With a conditional discharge for a drug offense, you are eligible if you have no prior convictions for drug offenses – other criminal convictions may influence the prosecutor or judge’s decision to agree to the conditional discharge, but it won’t prevent you from getting one.
With a conditional discharge for disorderly conduct charges, you are eligible if you have no prior convictions for public disorderly conduct or similar charges like public intoxication or breach of peace.
How Many Times Can You Get a Conditional Discharge in SC?
Only once – even though your record of the arrest is expunged, SLED will keep a copy solely to make sure you don’t complete the program more than once.
A conditional discharge does not prevent you from using other forms of pretrial diversion, however, including PTI (Pretrial Intervention) or Drug Court.
Is Expungement Automatic After a Conditional Discharge?
It should be if you are in the magistrate or municipal court.
Although magistrates and city judges are required to automatically expunge dismissed cases (and provide both you and your attorney with a copy of the expungement order), they do not always do what they are supposed to.
If your charge hasn’t been expunged after a reasonable period of time, you may need to contact the clerk of court to inquire about the expungement order or have an attorney follow through to ensure that your charges are expunged.
Drug Crime Defense Lawyers in Columbia, SC, and Myrtle Beach, SC
The criminal defense attorneys at the Thompson & Hiller Defense Firm focus exclusively on criminal defense cases in SC including drug crimes, traffic stops, and motions to suppress evidence. We have obtained dismissals, pre-trial diversion resulting in dismissals, or acquittals following trial in hundreds of criminal cases, and we have a record of proven results.
If you have been charged with a crime in SC or if you think you may be under investigation, call us now at 843-444-6122 or contact us through our website for a free initial consultation to find out if we can help.