S.C. Expungement When Charges are Dismissed as Part of a Plea Agreement

When a person is charged with a crime and the charge is dismissed, the solicitor’s office and SLED must then expunge the charge.  It does not matter if the charge was dismissed outright or if it was dismissed pursuant to a plea agreement, except that the defendant may be required to pay an administrative fee for the expungement if the charge was dismissed pursuant to a plea agreement.  If it is a magistrate or municipal level charge, the clerk is required to automatically process the expungement, but, if it is a General Sessions level charge, the defendant must file an application to begin the expungement process.

17-1-40 Authorizes Expungement of Dismissed Charges

S.C. Code Section 17-1-40(B)(1) and (C)(1) provides for the expungement of criminal charges when a case has been dismissed or the person was acquitted at trial:

(B)(1) If a person’s record is expunged pursuant to Article 9, Title 17, Chapter 22, because the person was charged with a criminal offense, or was issued a courtesy summons pursuant to Section 22-3-330 or another provision of law, and the charge was discharged, proceedings against the person were dismissed, or the person was found not guilty of the charge, then the arrest and booking record, associated bench warrants, mug shots, and fingerprints of the person must be destroyed and no evidence of the record pertaining to the charge or associated bench warrants may be retained by any municipal, county, or state agency.

17-1-40 also authorizes government agencies to maintain the booking records as well as incident reports and investigative files under seal for a period of three years and 120 days.  They are not public documents and can only be released pursuant to a court order, or redacted versions can be released pursuant to a FOIA request.  The point is, once a charge is dismissed the defendant has a right to have the charges expunged.

17-22-940 Specifically Authorizes Expungement of Charges Dismissed Pursuant to a Plea Agreement

S.C. Code Section 17-22-940 outlines the fees that SLED and solicitor’s offices can charge for processing an expungement as well as their duties in processing expungements.  In particular, the solicitor’s office cannot charge a fee for an expungement of a dismissal or acquittal pursuant to S.C. Code 17-1-40, unless the charge was dismissed as part of a plea agreement:

(B) Any person who applies to the solicitor’s office for an expungement of general sessions charges pursuant to Section 17-1-40 is exempt from paying the administrative fee, unless the charge that is the subject of the expungement request was dismissed, discharged, or nolle prossed as part of a plea arrangement under which the defendant pled guilty and was sentenced on other charges. (emphasis added)

It stands to reason that the legislature would not have specified that a defendant can be made to pay a fee to have his arrest record expunged if the defendant has no right to have the record expunged.

I have read all of South Carolina’s expungement statutes, and I find no provision in any of them that would permit the state to refuse to expunge a charge because it was dismissed pursuant to a plea agreement.

The Legislature Removed the One Provision That May Have Prohibited Expungement of Charges Dismissed Pursuant to Plea Agreement

S.C. Code Section 17-22-950 outlines the procedure for processing expungements of charges that were dismissed in the magistrate courts, and this statute used to have the following language in Section (A)(1), which may have been used as a justification for refusing to expunge a charge that was dismissed pursuant to a plea agreement:

SECTION 17-22-950. Criminal charges in summary court resulting in not guilty finding or dismissal; issuance of expungement order by presiding judge.
Section effective until May 16, 2016. See, also, section 17-22-950 effective May 16, 2016.

(A)(1) . . . The prosecuting agency or appropriate law enforcement agency may file an objection to a summary court expungement. If an objection is filed by the prosecuting agency or law enforcement agency, that expungement then must be heard by the judge of a general sessions court. The prosecuting agency’s or the appropriate law enforcement agency’s reason for objecting must be that the:

(a) accused person has other charges pending;

(b) prosecuting agency or the appropriate law enforcement agency believes that the evidence in the case needs to be preserved; or

(c) accused person’s charges were dismissed as a part of a plea agreement.  (emphasis added)

But that language was specifically removed in an amendment that took effect in May of 2016, and it was replaced with this section:

SECTION 17-22-950. Summary court expungement orders; removal of Internet-based public records; objections; forms.
Section effective May 16, 2016. See, also, section 17-22-950 effective until May 16, 2016.

(F) A prosecution or law enforcement agency may file an objection to a summary court expungement. If an objection is filed, the expungement must be heard by the judge of a general sessions court. The prosecution’s or law enforcement agency’s reason for objecting must be that the accused person has other charges pending or the charges are not eligible for expungement. The prosecution or law enforcement agency shall notify the accused person of the objection. The notice must be given in writing at the most current address on file with the summary court, or through the accused person’s attorney, no later than thirty days after the accused person is found not guilty or the accused person’s charges are dismissed or nolle prossed. (emphasis added)

Under Section 17-1-40, the solicitor has discretion as to whether NCIC should be amended to reflect a lesser included offense – this is a different situation that does not apply to cases where a defendant pleads guilty to one charge and others are dismissed.  A lesser included offense must have the same elements as the original offense and typically will be a reduction in the degree of charges, such as a reduction of a burglary 1st degree to a burglary 2nd degree violent or reduction of possession with intent to distribute to simple possession.

(4) If a person pleads guilty to a lesser included offense and the solicitor deems it appropriate, the solicitor shall notify the State Law Enforcement Division (SLED) and SLED shall request that the person’s record contained in the National Crime Information Center (NCIC) database or other similar database reflects the lesser included offense rather than the offense originally charged.

Even if charges dismissed pursuant to plea agreement were not eligible for expungement before May 2016, it is clear that now they are.  If the case was in the magistrate court the Court is still required to automatically process the expungement, and, if the case was in General Sessions Court, the defendant must file an application to start the process.   If the solicitor’s office or SLED denies the expungement application on the basis of it being dismissed as part of a plea agreement, the next step may be to file an action for a declaratory judgment in the Circuit Court which is also authorized by 17-22-940:

(J) Nothing in this article precludes an applicant from retaining counsel to apply to the solicitor’s office on his behalf or precludes retained counsel from initiating an action in circuit court seeking a judicial determination of eligibility when the solicitor, in his discretion, does not consent to the expungement.

If anyone is aware of any authority that would preclude expungement of charges dismissed pursuant to plea agreement, feel free to email, call, or leave a comment to let us know.

3 Responses to “S.C. Expungement When Charges are Dismissed as Part of a Plea Agreement

  • Let’s for a moment cut to the chase and get past the law pertaining to expungement; a law whereby the first paragraph makes clear its intended purpose, followed by a demonstrable list of subparagraphs which defeat it entirely; making it every bit as capricious, further insulting to justice as those charging a fee, further misleading their clients into the promise of a clean slate for their own pound of flesh.

    If one reads the typical court order for destruction of arrest records, it clearly states, “IT IS ORDERED–” followed by the aforementioned paragraph, but absent the aforementioned list of defeating legislature which makes this order as binding as the actual intent of an expungement.

    Therefore, when court clerks, SLED, arresting agencies and detention centers mindlessly retain these records in the name of the aforementioned, capricious law, they in fact of law are in contempt of court, further subject to charges of perjury and subordination thereof, inclusive of damages for knowingly continuing the allowance of an individual’s mugshot to be made available for every extortionist charging a fee for its removal; to which there exist some mail order attorneys, who hang out at detention center websites, fishing for clients, and breaking near every rule of professional conduct we have a law for to this very end; all the while doing this very thing and representing their victim at the same time.

    Does that answer any of your questions?

  • I was reading recently that moving violation cannot be expunged here in sc.
    Any thoughts on this?

    • Traffic offenses cannot be expunged in S.C., it doesn’t matter if it is a moving violation or not. They can be expunged if the person completes the Traffic Education Program (TEP), which is like PTI for traffic offenses.

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