Could two convictions from one South Carolina court appearance both be expunged?

Plain-English summary

The Attorney General reconsidered a 1999 office opinion that treated multiple convictions entered at one court appearance as a bar to expungement. The question involved separate shoplifting warrants and guilty pleas taken at the same appearance. After the South Carolina Court of Appeals decided Fryer v. South Carolina Law Enforcement Division, the AG concluded that separate offenses resulting in convictions at one appearance could be expunged under S.C. Code Ann. § 22-5-910.

That conclusion did not make expungement automatic. As the opinion explained the statute, the circuit court could order it only if the other statutory conditions were satisfied, including a clean record on every other day of the applicable three-year period. The statute also limited use of this expungement provision to once per person. The AG's earlier categorical answer about a single appearance no longer reflected his view after Fryer.

Currency note

This opinion was issued in 2008. 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: Did two guilty pleas taken at one hearing count as just one offense? A: No. The opinion treated the charges as separate offenses and said the same hearing did not, by itself, prevent expungement of both convictions.

Q: Why did the AG change the office's earlier position?
A: The South Carolina Court of Appeals had upheld a second expungement order involving separate offenses whose guilty pleas were entered at one court appearance. The AG said his revised interpretation followed that decision.

Q: Did the opinion guarantee that a court would expunge both convictions? A: No. It said expungement "may be allowed" and quoted the statute's language that the circuit court "may issue an order" when the required period had no other conviction.

Q: Did a conviction on a different day of the waiting period matter? A: Yes. The AG stated that all other days of the applicable three-year period had to be free of convictions to authorize expungement under the provision he analyzed.

Background and statutory framework

S.C. Code Ann. § 22-5-910, as quoted in the opinion, concerned a first offense conviction in magistrates or municipal court and applications to the circuit court after a specified period. It excluded certain categories of offenses and provided a different period for a specified domestic-violence offense. The central issue here was whether two convictions at a single appearance necessarily defeated the provision. The AG answered no in light of Fryer while preserving the statute's other limits.

Citations and references

Statute discussed: S.C. Code Ann. § 22-5-910. Case discussed: Fryer v. South Carolina Law Enforcement Division, 369 S.C. 395, 631 S.E.2d 918 (Ct.App. 2006).

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/may-5-2008/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/05/means-j-os-8595-5-5-08-expungement.pdf

Original opinion text

May 5, 2008

Lieutenant Joe Means
South Carolina Law Enforcement Division
P. O. Box 21398
Columbia, South Carolina 29221-1398
Dear Joe:
You have requested our review of S.C. Code Ann. § 22-5-910 which states: (A) [f]ollowing a first offense conviction in a magistrates court or a municipal court, the defendant after three years from the date of the conviction may apply, or cause someone acting on his behalf to apply, to the circuit court for an order expunging the records of the arrest and conviction. However, this section does not apply to: (1) an offense involving the operation of a motor vehicle; (2) a violation of Title 50 or the regulations promulgated pursuant to Title 50 for which points are assessed, suspension provided for, or enhanced penalties for subsequent offenses are authorized; or (3) an offense contained in Chapter 25 of Title 16, except first offense criminal domestic violence as contained in Section 16-25-20, which may be expunged five years from the date of the conviction. (B) If the defendant has had no other conviction during the three-year period, or during the five-year period as provided in subsection (A)(3), following the first offense conviction in a magistrates court or a municipal court, the circuit court may issue an order expunging the records. No person may have his records expunged under this section more than once. A person may have his record expunged even though the conviction occurred prior to June 1, 1992. (C) After the expungement, the South Carolina Law Enforcement Division is

Lieutenant Joe Means
Page 2
May 5, 2008
required to keep a nonpublic record of the offense and the date of the expungement to ensure that no person takes advantage of the rights of this section more than once. This nonpublic record is not subject to release under Section 34-11-95, the Freedom of Information Act, or any other provision of law except to those authorized law or court officials who need to know this information in order to prevent the rights afforded by this section from being taken advantage of more than once. (D) As used in this section, "conviction" includes a guilty plea, a plea of nolo contendere, or the forfeiting of bail. (emphasis added). In a prior opinion dated December 28, 1999, this office concluded that
[a]lthough Section 22-5-910 does not expressly state that each charge is a separate offense, if a defendant is charged with multiple offenses in a single court appearance, it is the opinion of this office...that the phrase “first offense conviction” refers only to one specific charge. Thus, a person with multiple convictions from a single court appearance could not have his record expunged under Section 22-5-910. Your question arises out of a situation where an individual was charged on two separate arrest warrants for shoplifting and entered guilty pleas to both offenses at a single court appearance. Since the referenced opinion was issued, the State Court of Appeals issued an opinion in Fryer v. South Carolina Law Enforcement Division, 369 S.C. 395, 631 S.E.2d 918 (Ct.App. 2006). In that case, the defendant was arrested on two separate warrants for two separate offenses, petit larceny and malicious injury to personal property, but pled guilty to both charges in a single court appearance. By court orders, both offenses were ordered expunged, the malicious injury to personal property charge by an order in 1998 and the petit larceny charge by an order in 2000. It was argued that the 2000 order expunging the petit larceny charge was void because it was in violation of Section 22-5910. The Court of Appeals disagreed. Therefore, consistent with Fryer, there is a basis to allow expungement for two offenses where there were two convictions at a single court appearance. While this office in the referenced opinion determined that an individual with multiple convictions from a single court appearance could not have his record expunged pursuant to Section 22-5-910, it is now the opinion of this office in light of Fryer that if separate offenses result in convictions in a single court appearance, the expungement of these separate offenses may be allowed pursuant to Section 22-5-910. As stated by such provision, “[i]f the defendant has had no other conviction during the three-year period, or during the five-year period as provided in subsection (A)(3), following the first offense conviction in a magistrates court or a municipal court, the circuit court may issue an order expunging the records.” In order to authorize an expungement, there must be a clean record for all other days of the three year period with no convictions occurring during that time.

Lieutenant Joe Means
Page 3
May 5, 2008

If there are any questions, please advise.
Sincerely,
Henry McMaster
Attorney General

By:

REVIEWED AND APPROVED BY:

______
Robert D. Cook
Deputy Attorney General

Charles H. Richardson
Senior Assistant Attorney General