When did an indigent defendant in a South Carolina municipal court receive appointed counsel under the 1996 rule?

Plain-English summary

Walterboro's police chief asked in 1996 when a city had to provide a lawyer without charge to an indigent person in municipal court, and whether some defendants could use the county public defender. The AG said the governing court rule called for appointed counsel when a prison sentence was likely following conviction. The court would determine indigency and, for an approved applicant, the county public defender would take the case if one existed and was available. Otherwise, counsel would be appointed through the court process.

The opinion did not say that every traffic or criminal case automatically required free counsel. The possibility of imprisonment and the indigency determination mattered. It also recognized that public defenders might not be able to cover every municipal case because of staffing and funding limits; another lawyer could then be appointed.

Currency note

This opinion was issued in 1996. 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

Did every person appearing in municipal court get a free lawyer?

No. The opinion discussed appointment for a financially eligible defendant when imprisonment was likely after conviction. It described a process for determining indigency.

Could a Colleton County public defender represent a municipal court defendant?

Under the rule the AG discussed, an approved applicant would be referred to the county public defender if one existed and could provide representation. The opinion acknowledged that resource limits could require appointment of other counsel.

Who decided whether the defendant qualified financially?

The opinion described an examination of the indigency affidavit, with a judge able to make a final determination where debts and liabilities complicated the income-based presumption in the then-applicable rule.

Background and legal framework

The letter relied on South Carolina Appellate Court Rule 602 and quoted the procedures for advising defendants of counsel rights, applying for appointed representation, and referring approved applicants. It drew on an earlier AG opinion about public defender capacity. The letter was an informal view of the signing assistant deputy attorney general; the referenced enclosures were not part of the PDF text reproduced below.

Citations

• South Carolina Appellate Court Rule 602.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/march-21-1996/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/12/96mar21arthur.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
CHARLl:S lv1oLO!\"Y C:o'.\DO'\
/\rTOR'.\:EY GE:\ERA!,

March 21, 1996

K. W. Arthur, Chief of Police
Walterboro Police Department
Post Office Box 709
Walterboro, South Carolina 29488
Re: Informal Opinion
Dear Chief Arthur:
You have asked the following questions:
( 1)

[i]s a City required to provide an attorney at no cost to an indigent person who appears in Municipal Court?

(2)

[a]re there some indigent persons allowed to avail themselves cf the Colleton County Public Defender's Office in a traffic or criminal case in the Municipal Court?

South Carolina Appellate Court Rule (SCACR) 602 provides in pertinent part as follows:
... [i]n cases involving criminal charges within the jurisdiction of magistrates' courts, municipal courts or other courts with like jurisdiction, if a prison sentence is likely to be imposed following any conviction, the presiding judge of the court in which the matter is to be determined shall inform the accused as provided in Rule 2 when the case is called for disposition ....

Chief Arthur
Page 2
March 21, 1996

(b) The officer before whom the arrested person 1s taken shall: ( l)

Inform the accused of the charges against him
and of the nature of the charges.

(2)

Advise the accused of his right to counsel and
of his right to the appointment of counsel by the court, if the accused 1s financially unable to employ counsel.

(3)

If the accused represents that he is financially unable to employ counsel, take his application for the appointment of counsel or for the services of the Public Defender where the latter is available in the county.

Upon an examination of the completed Affidavit of lndigency (Form II), by the officer designated for the purpose of determining indigency, along with the other facts alleged, a presumption of non-indigency is created if the gross income of the accused exceeds $125 per week. The baseline figure for non-indigency is increased by $20 per defendant. Where the accused's income exceeds the presumptive amount and a presumption of non-indigency is created, but liabilities and debts exist as complicating factors, a final determination of indigency may be made by the judge with jurisdiction over the court in which the matter is to be heard. (c) If application for counsel is approved for the accused, the Clerk of Court or other officer shall immediately notify the Office of Public Defender, if one exists in the county, and the Public Defender shall immediately thereafter enter upon the representation of the accused. If there is no Public Defender for the county, then the Clerk of Court or other officer shall immediately notify the court, or such person as the resident judge may designate, of the request for counsel and appointment of counsel shall be made immediately with

Chief Arthur
Page 3
March 21, 1996

prompt notification thereof to the accused and counsel so appointed. In an opinion of this Office dated November 7, 1979, we stated as follows with respect to the foregoing rule:
[t]herefore, pursuant to the above, there is no question that an indigent charged with an offense within the jurisdiction of the municipal court is entitled to legal counsel '... if a prison sentence is likely to be imposed following any conviction.' By Rule 2(3), if there is a Public Defender in the county he is to represent the accused. However, while the rule does provide for represe:1tation J:,y the Public Defender, admittedly in certain siiuations representation is not possible due to manpower and funding shortages. This Offke is informed that the Aiken County Public Defender and his assistants are funded only on a part-time basis based on their representation of cases triable in the General Sessions Court and Family Court. Therefore, obviously the Public Defender cannot be expected to represent all indigent defendants in cases triable in the magistrate and municipal courts. Due to such manpower and funding shortages it may be necessary that members of the Aiken County Bar other than the Public Defender and his staff be appointed to represent indigent defendants in municipal court. In summary, the appointment of counsel for indigent defendants for cases triable in magistrate's or municipal court is governed by Supreme Court Rule 602. Pursuant thereto, counsel is appointed for indigent defendants "if a prison sentence is likely to be imposed following any conviction." If the court so determines, then an examination into whether or not the defendant is indigent is conducted and, if so, provision for the appointment of counsel is made in accordance with the foregoing Rule. I am herein providing you with a copy of Rule 602, the 1979 opinion referenced above, as well as a passage from the Magistrates and Municipal Court Judges Bench Book which discusses counsel for defendants in those courts generally. This letter is an informal opinion only. It has been written by a designated Assistant Deputy Attorney General and represents the position of the undersigned attorney

Chief Arthur
Page 4
March 21, 1996
as to the specific questions asked. It has not, however, been personally scrutinized by the Attorney General nor officially published in the manner of a formal opinion. With kind regards, I am Very truly yours,

.·

/l

/~/~~

Ro~D. Cook

Assistant Deputy Attorney General
RDC/an
Enclosures