Could a South Carolina solicitor reduce a second-offense domestic violence charge to a first offense?

Plain-English summary

In 2006, a Fairfield County magistrate asked about prosecuting first- and second-offense criminal domestic violence cases. The Attorney General said the statute placed first offenses in summary court. A second offense belonged in general sessions court, though a case meeting the cited transfer procedure could move to magistrate or municipal court.

The AG said a solicitor could use prosecutorial discretion to reduce a second-offense charge to a first offense. It described a new charging document as typical after a reduction, but declined to give an absolute rule for every case. On the facts presented, the office saw no misconduct, appeal basis, or disciplinary issue merely from the reduction or a judge trying the reduced case. The opinion addressed charging discretion under the law in 2006, not the merits of any specific prosecution.

Currency note

This opinion was issued in 2006. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Could a solicitor reduce a second-offense charge to a first offense?

A: The AG said yes. It treated that charging decision as part of the solicitor's broad prosecutorial discretion.

Q: Which court heard a first-offense case under the 2006 statute?

A: The AG said a first offense had to be tried in summary court, such as a magistrate's court.

Q: Could a second-offense case reach magistrate's court?

A: The AG said it could be transferred from general sessions if the procedural requirements of the cited transfer statute were met.

Q: Was a new charging document always required after reduction?

A: The AG said one was typically issued, but declined to state an absolute rule because case circumstances differed.

Background and statutory framework

The opinion reviewed the then-applicable offense and penalty provisions, summary-court jurisdiction, and transfer procedure. It applied South Carolina decisions recognizing a solicitor's broad control over the charges pursued, while acknowledging the court's caveat about corrupt or capricious dismissal.

Citations and references

• Section 16-25-20: the first- and second-offense provisions discussed by the AG.
• § 22-3-545: the transfer procedure for eligible cases.
• State v. Tyndall, 336 S.C. 8, 518 S.E.2d 278 (1999): prosecutorial discretion discussed in the opinion.

Official title

Regarding the prosecution of first and second offense criminal domestic (CDV) cases.

Requester

The Honorable Robert F. Williams, Jr., Magistrate for Fairfield County

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/april-18-2006-1/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/03/06apr18-Williams.pdf

Original opinion text

HENRY MCMASTER
ATTOR.'ll:'.Y GENERAL

April 18, 2006

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The Honorable Robert F. Williams, Jr.
Magistrate for Fairfield County
115-B S. Congress S treet
Winnsboro, South Carolina 29180
Dear Judge Williams:

In a letter to this office raised several questions regarding the prosecution of first and second offense criminal domestic violence (CDV) cases. The offense of CDV is set forth by S.C. Code Ann.§§ 16-25-10 et seq. Section 16-25-20(A) states that

It is unlawful to (1) cause physical harm or injury to a person's own household member; or (2) offer or attempt to cause physical bann or injury to a person's own household member with apparent present ability under circumstances reasonably creating fear of imminent peril. Section 16-25-65 provides for the offense of criminal domestic violence of a high and aggravated nature. Pursuant to subsection (B) of Section 16-25-20, the penalty for a first offense CDV vio lation is a fine of not less than one thousand dollars nor more than two thousand five hundred dollars or imprisonment not more than thirty days. While generally pursuant to S.C. Code Ann. § 22-3 -550 magistrates have jurisdiction of offenses subject to a penalty of a fine not exceeding five hundred dollars orimprisorunent not exceeding thirty days, or both, Section 16-25-20(8) specifically provides that notwithstanding Section 22-3-550, a first offense violation "must be tri ed in summary court", such as a magistrate's court. As to second offense CDV cases, subsection (C) of Section 16-25-20 states that A person who violates subsection (A) and who has been convicted of a violation of that subsection or of Section 16-25-65 within the previous ten years is guilty of a misdemeanor and, upon conviction, must be fined not less than two thousand five hundred dollars nor more than five thousand dollars and imprisoned not less than a mandatory minimum of thirty days nor more than one year. Therefore, a CDY2nd offense is a general sessions offense. Of course, pursuant to S.C. Code Ann.
§ 22-3-545, a criminal case where the penalty does not exceed five thousand five hundred dollars

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The Honorable Robert F. Williams, Jr.
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April 18, 2006
or one year imprisonment, or both, may be transferred from general sessions court to a magistrate's or municipal court if there is compliance with the procedural guidelines of such provision. Consistent with such, because of the applicable penalty, a CDV2nd case could be transferred from general sessions court to magistrate's court.

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You are correct in your understanding that if a defendant has a prior CDV conviction within the previous ten years, he typically should be charged with CDV2nd. However, you have also questioned whether a solicitor has the authority to change a CDV2nd charge to a first offense CDV charge. In examining your question, it is important to recognize a solicitor's broad prosecutorial discretion to dispose of criminal charges. An opinion of this office dated December 4, 1980, emphasized that "... the prosecutor is allowed wide discretion in whether or not to bring charges against an individual and ifhe so decides he is again allowed discretion as to what charges to prefer." See also Simmons v. State, 264 S.C. 417, 215 S.E.2d 883 (1975). The general principle that a prosecuting officer has virtually unlimited authority to decide whether or how to prosecute a case in a given instance has been reiterated by courts as well as opinions of this office in a variety of contexts. For instance, as to the entering of anol pros, in Statev. Ridge, 269 S.C. 61, 64, 236 S.E.2d 401, 402 (1977), the Supreme Court citing State v. Charles, 183 S.C. 188, 190 S.E. 466 (193 7) stated that, except in cases where the prosecutor acts corruptly or capriciously, the rule in this State is that "... the entering of a nolle prosequi at any time before the jury is impaneled and sworn is within the discretion of the solicitor." Similarly, with reference to the dismissing or nol prossing of cases, this office has opined that this "broad prosecutorial discretion gives the prosecutor alone the authority to nol pros a case at any time prior to the impaneling of the jury." See Atty. Gen. Op. dated June 3, 1996. As to prosecutorial discretion generally, in State v. Kinchen, 707 A.2d 1255, 1260 (Conn. 1998), the Connecticut court referenced that "(t)here can be no doubt that the doctrine of separation of powers requires judicial respect for the independence of the prosecutor... Prosecutors, therefore, have a 'wide latitude and broad discretion in determining when, who, why and whether to prosecute for violations of the criminal law." Similarly, in State v. Addis, 257 S.C. 482, 487, 186 S.E.2d 415, 41 7 (1972), the State Supreme Court indicated that "(i)n every criminal prosecution the responsibility for the conduct of the trial is upon the solicitor and he must and does have full control of the State's case." A prior opinion of this office dated March 5, 1990 stated that "the decision as to what criminal charges to bring or the decision of whether or not to proceed with a given charge is a matter within the discretion of the solicitor." As set forth in State v. Tyndall, 336 S.C. 8, 18, 518 S.E.2d 278, 283 (1999) quoting State v. Thrift, 312 S.C. 282, 291-292, 440 S.E.2d 341, 346-347 (1994) Both the South Carolina Constitution and South Carolina case law place the unfettered discretion to prosecute solely in the prosecutor's hands .... Prosecutors may pursue a case to trial, or they may plea bargain it down to a lesser offense, or they can simply decide not to prosecute the offense in its entirety. The Judicial Branch is not empowered to infringe on the exercise of this prosecutorial discretion ...

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The Honorable Robert F. Williams, Jr.
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April 18, 2006
As indicated in State v. Burdette, 335 S.C. 34, 40, 515 S.E.2d 525, 528-529 (1999), "(c)hoosing which crime to charge a defendant with is the essence of prosecutorial discretion."

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Although the Court in Ridge, supra, limited this absolute discretion by holding that a prosecutor cannot dismiss a case corruptly or capriciously, nevertheless, the discretion which a prosecutor retains as to whether or not to proceed to trial with a particular case or even bring the case at all, remains quite broad. For instance, as to mandatory sentencing guidelines, as indicated by the State Supreme Court in State v. Burdette, 335 S.C. 34, 40-41, 515 S.E.2d 525, 528-529 (1999), "[u ]nder the mandatory sentencing guidelines, the prosecutor can still choose not to pursue the triggering offenses or to plea the charges down to non-triggering offenses. Choosing which crime to charge a defendant with is the essence of prosecutorial discretion, not choosing which sentence the court shall impose upon conviction." The foregoing authorities fully demonstrate the broad authority and discretion of a prosecutor in deciding whether or not to proceed to trial with a particular prosecution. Consistent with the above, in my opinion, it would be a matter of prosecutorial discretion for a solicitor to change a charge ofCDV2nd to CDVlst. As to your question of whether the original charging document must be withdrawn and a new charging document issued when a case is reduced from a CDV2nd to CDVI st, it is my understanding that, typically, a new charging document is issued when a case is reduced. Of course, individual cases may be handled differently depending on the circumstances and, therefore, I cannot provide an absolute answer applicable to all situations.

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As to your remaining questions, inasmuch as a solicitor has the apparent authority to reduce a CDV2nd to CDVl st, in my opinion, there would not be any issue of misconduct or a basis for an appeal if such were to occur as to a particular case. Similarly, I do not discern any issue regarding such to be a matter for review by the Office of Disciplinary Counsel where a judge tries a case following such a reduction of charges.

If there are any questions, please advise.

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Charles H. Richardson
Senior Assistant Attorney General

REVIEWED AND APPROVED BY:

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RObertD.Cook
Assistant Deputy Attorney General