After an arrest on a bench warrant, could a South Carolina municipal judge other than the sentencing judge accept the fine?

Plain-English summary

In 2007, the South Carolina Attorney General addressed a municipal defendant tried in absentia, sentenced to a fine or ten days in jail, and later arrested under a bench warrant. He concluded that the defendant appeared to have to return to the judge who imposed the sentence, including after a Friday evening arrest or when that judge was away. The opinion identified no authority for the weekend duty judge to accept the fine and release the defendant on the facts presented.

The AG said he knew of no court rule or order authorizing a different judge to handle the matter. He suggested that an additional order might authorize another judge in particular circumstances, especially if the sentencing judge was unavailable for an extended period, and pointed the requester to State Court Administration.

Currency note

This opinion was issued in 2007. 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 the weekend duty judge accept payment of the fine under this opinion? A: The AG concluded that the defendant appeared to have to return to the original sentencing judge to pay the fine or have imprisonment imposed.

Q: What if the sentencing judge was on vacation or otherwise absent? A: The opinion reached the same conclusion when the sentencing judge was unavailable: the defendant appeared to have to wait for that judge's return. It also raised the possibility of a separate order authorizing another judge in particular circumstances.

Q: What was the purpose of the bench warrant in this situation? A: The opinion described a bench warrant as a means of bringing the defendant back before the court that had already obtained jurisdiction so the imposed sentence could be carried out.

Background and statutory framework

The opinion relied on earlier AG opinions, the South Carolina Bench Book for Magistrates and Municipal Court Judges, and a former chief justice's order. Those authorities described the bench warrant as process returning a defendant to the original court for compliance with an imposed sentence. The AG identified no statute, rule, or order then authorizing another judge to accept payment in the described circumstances.

Citations and references

Prior AG opinions: May 19, 2004; April 21, 1995; November 16, 1990.

Other authority: South Carolina Bench Book for Magistrates and Municipal Court Judges, Section III, p. 16; order of former Chief Justice Woodrow Lewis dated November 14, 1980.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/april-23-2007/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/03/miller-b-l-4-23-07-os-8345-bench-warrant.pdf

Original opinion text

April 23, 2007

The Honorable B. Lee Miller
Municipal Court Judge
Post Office Box 40
Greenwood, South Carolina 29648
Dear Judge Miller:
In a letter to this office you referenced a situation where an individual is tried in his absence for a particular violation. After the trial, the judge imposes a sentence of a fine or ten day term of imprisonment. A bench warrant is then issued and the individual is arrested. Referencing such, you indicated that in the situation prompting your question, the individual is arrested on a Friday evening after normal working hours. You questioned whether the municipal judge on weekend duty can handle the matter and allow the defendant to pay the fine and be released or must the defendant wait until he can be brought before the judge that actually imposed the sentence. You also questioned whether in the situation addressed above, if the sentencing judge is not available for reasons such as a vacation, illness or personal leave, must the defendant also wait until the sentencing judge returns in order to be brought back before the sentencing judge. Prior opinions of this office have referenced that a bench warrant is utilized “...to bring the defendant back into court to comply with the imposed sentence.” See: Op. Atty. Gen. dated May 19, 2004. An opinion dated April 21, 1995 indicated that
[t]he general rule is that where a defendant fails to pay a fine or otherwise comply with a sentence, a bench warrant is issued for his arrest and he is brought back before the court to comply with the sentence.... The South Carolina Bench Book for Magistrates and Municipal Court Judges similarly states that a bench warrant is
...a form of process to be used to bring a defendant back before a particular court on a particular charge for a specific purpose after the court has acquired jurisdiction over

The Honorable B. Lee Miller
Page 2
April 23, 2007
the defendant on that particular charge by virtue of a previously served proper charging paper. (emphasis added). Section III, p. 16. Also set forth in the Bench Book is an order from former Chief Justice Woodrow Lewis dated November 14, 1980 which states IT IS ORDERED that bench warrants shall be endorsed for service in foreign counties in the same manner as numbered arrest warrants...Upon endorsement such bench warrants are not to be used for the purpose of initiating criminal action, but are to be used only for the purpose of bringing a defendant before a court which has already gained jurisdiction over that defendant by means of a valid charging paper. (emphasis added). An opinion of this office dated November 16, 1990 dealt with the endorsement of bench warrants for service in foreign counties in the same manner as arrest warrants. The opinion stated that a bench warrant is
...to be used only for the purpose of bringing a defendant before a court which has already gained jurisdiction over that defendant by means of a valid charging paper. Therefore, a bench warrant is used to bring a defendant back to the court which originally tried the defendant. Absent the enactment of a statute or adoption of a court rule authorizing the payment of the fine to the magistrate in the county of arrest, I am unable to conclude that release following such a payment would be authorized. (emphasis added). Therefore, that opinion states that where a bench warrant is countersigned for service in another county, payment of a fine to the magistrate in the other county would not be authorized. Instead, the individual must be returned to the original court whereby the fine or term of imprisonment would be imposed. In the situation you addressed, the individual is arrested pursuant to a bench warrant on a Friday evening after normal working hours. You questioned whether the municipal judge on weekend duty can handle the matter and allow the defendant to pay the fine and be released or must the defendant wait until he can be brought before the judge that actually imposed the sentence. Consistent with the above, it appears that the defendant would have to be brought back before the original judge in order to either pay the fine or have a sentence of imprisonment imposed. Similarly, if the sentencing judge is not available for reasons such as a vacation, illness or personal leave, it appears that the defendant would have to wait until that judge returns in order to be brought back before the sentencing judge either to pay the fine or have a sentence of imprisonment imposed. Again, I am unaware of any court rule or order that provides that a judge other than the judge that issues a bench warrant may handle cases for the judge that issues the bench warrant. However, this may be a situation where in particular circumstances an additional order may be sought which would authorize another judge to consider such a case, especially where the original sentencing judge is

The Honorable B. Lee Miller
Page 3
April 23, 2007
unavailable for an extended period of time. You may wish to contact the State Court Administration office with regard to such question. Sincerely, Henry McMaster Attorney General

By:
REVIEWED AND APPROVED BY:

______
Robert D. Cook
Assistant Deputy Attorney General
cc:

Robert L. McCurdy, Esquire
South Carolina Court Administration

Charles H. Richardson
Senior Assistant Attorney General