C. Classification of Offenses

• Library: The Criminal Law of South Carolina (SCBar) (2014 Ed.)

C. Classification of Offenses

1. Felonies and Misdemeanors

a. Felonies Distinguished from Misdemeanors

(1) Prior to January 1, 1994

There has never been a satisfactory definition of "felony" other than one descriptive of the punishment such a crime entails. "Felony, in the general acceptation of our English law, comprises every species of crime, which occasioned at common law the forfeiture of lands or goods." 4 Blackstone, Commentaries on the Laws of England 94 (1863). "Any offense punishable by death or imprisonment for a term exceeding one year is a felony [and a]ny other offense is a misdemeanor." 18 U.S.C.A. § 1 (1969).

Prior to January 1, 1994 no such positive statements could have been made about felonies and misdemeanors in South Carolina because there was substantial overlap in the punishment for the two categories of crime. If there was no specific sentence authorized by statute for a particular misdemeanor, then the "court shall award such sentence as is conformable to the common usage and practice in this State, according to the nature of the offense, and not repugnant to the Constitution." S.C. Code Ann § 17-25-30 (2003). This section was held to authorize sentences of up to ten years' incarceration for a misdemeanor. State v. Hill, 254 S.C. 321, 331, 175 S.E.2d 227, 232 (1970). Actually South Carolina had one misdemeanor with a maximum penalty of incarceration for twenty years. S.C. Code Ann. § 44-23-1150 (1985) authorized such a sanction for one who has sexual intercourse with a patient or trainee of any state mental health facility, even if the patient is unlawfully absent from the facility and even if the defendant is unaware of the patient's status. State v. Kirkland, 282 S.C. 14, 317 S.E.2d 444 (1984); Guinyard v. State, 260 S.C. 220, 195 S.E.2d 392 (1973). This offense became a ten-year felony effective January 1, 1994, S.C. Code Ann. § 44-23-1150 (Supp. 2000), and was substantially re-written and the punishments changed in 2001 (Supp. 2012).

The ten-year limitation for misdemeanors with no specified punishment was a function of ten-year maximum for felonies for which there is no specific punishment. S.C. Code Ann. § 17-25-20 (2003). Of course, many felonies carry specifically authorized punishments substantially in excess of the ten years which was the maximum for any misdemeanor. E.g., S.C. Code Ann. § 16-3-20(A) (Supp. 2012), death or 30 years to life for murder. S.C. Code Ann. § 16-11-311 (2003), 15 years to life for first degree burglary.

(2) Effective January 1, 1994

The Crime Classification Act of 1993, effective January 1, 1994, totally reorganized the substantive criminal law of South Carolina into six classes of felonies and three of misdemeanors. Crimes with a maximum term of less than one year are misdemeanors which are exempt from the classification system. Also there are specified felonies which are excepted from the classification system. All misdemeanors, except for assault and battery of a high and aggravated nature (ABHAN), have a maximum penalty of incarceration for three years or less. ABHAN is an unclassified misdemeanor with a maximum penalty of ten years pursuant to S.C. Code Ann. § 17-25-30 (2003). See State v. Hill, 254 S.C. 321, 331, 175 S.E.2d 227, 232 (1970) (authorizing the ten year penalty prior to the 1993 act). As an unclassified offense, ABHAN is subject to the penalty authorized prior to the act, as are all non-classified felonies and misdemeanors. S.C. Code Ann. § 16-1-110 (2003). Under the Crime Classiication Act, the lowest maximum penalty for a felony is ive years.

In order to fit existing crimes into the new classifications, the act changed the maximum prison terms of approximately sixty-ive felonies and nearly one hundred misdemeanors. About ifteen crimes which had been felonies were re-categorized as misdemeanors, and about eighty crimes which had been misdemeanors were re-categorized as felonies.

Subject to the exemptions, all existing crimes and crimes created in the future are categorized as follows:

Felonies		Misdemeanors
Class	Maximum Term	Class	Maximum Term
A	30 years	A	3 years
B	25 years	B	2 years
C	20 years	C	1 year
D	15 years
E	10 years
F	5 years

Economic crimes are structured according to the amount of property involved. Third and subsequent offenses require sentencing one class above that provided for the principal offense.

Amount of Property Involved	Classification
$1,000 or less	Magistrate's Court
Over $1,000, but less than $5,000	Class F Felony (5 year maximum)
$5,000 and above	ClassE Felony(10 year maximum)

Subsection (D) of § 16-1-10 lists felonies which are classified as exempt from the classification system. Among others these include murder, § 16-3-10; homicide by child abuse, § 16-3-85(C)(1); lynching, § 16-3-210; kidnapping (if sentenced for murder), § 16-3-910; burglary, first degree, § 16-11-311(B); damaging or destroying building, vehicle or other property by means of explosive incendiary, resulting in death, § 23-36-170(c)-(d); giving information respecting national or state defense to foreign nationals during war, § 25-7-30; and obstruction of railroad resulting in death, § 58-17-4090. Also exempt are a number of specific provisions of the drug trafficking statutes, §§ 44-53-370, and 375. Other exempt statutes include S.C. Code Ann. §§ 56-5-2780(B)(1) (Supp. 2012) (passing stopped school bus and causing injury or death to a pedestrian) and § 56-15-590 (Supp. 2012) (failure of wholesale vehicle dealer to keep certain records).

Subsection A of § 16-1-20 provides for the maximum terms of imprisonment for the nine new classifications of crime. Subsection B provides that minimum terms of imprisonment shall not apply to the offenses listed in §§ 16-1-90 and 100 for all offenders sentenced on or after July 1, 1993, unless the offense refers to "a mandatory minimum sentence or the offense prohibits suspension of any part of the sentence." The date is somewhat confusing. Originally the effective date of the entire Classification Act was anticipated to be July 1, 1993. However, because of delays in the legislative process, the effective date was postponed in section 269 of the Act to January 1, 1994. While the July 1, 1993 date in section 2(B) also should have been changed to January 1, 1994, in practical effect it was, because until the latter date the entire Act was without legal effect, save for sections 267 and 268 which created a permanent joint legislative committee to study the criminal laws of the state.

Section 16-1-90 lists all the offenses encompassed within each of the six classes of felonies, and section 16-1-100 lists all the offenses encompassed within each of the three classes of misdemeanors. Section 16-1-30 was substantially rewritten and now provides that all subsequently enacted offenses must be classified according to the maximum provided in the statute according to sections 16-1-10 and 20 unless exempted pursuant to section 16-1-10(D). The fact that a given offense is listed in a particular classification only establishes what its maximum term of incarceration. Previously existing provisions for fines in particular statutes remain in effect.

Section 9 of the Act adds new code section 16-1-80 that provides that a person convicted of the common law offense of attempt "must be punished as for the principal offense." This substantially changes the penalty for attempt, which has traditionally been punished as a misdemeanor under section 17-25-30 with a maximum of ten years unless a particular statute prescribes a greater sentence. E.g., section 16-11-330(B) (2003) (up to 20 years for attempted armed robbery).

Since January 12, 1995 there has been a sliding scale of additional mandatory penalties for anyone convicted of a felony after having been released from prison at the end of a sentence for a Class A, B, or C felony or any exempt offense with a maximum penalty of twenty years or more. The shorter the time between release and subsequent commission of the felony, the greater the additional penalty. S.C. Code Ann. § 16-1-120 (2003).

The Crime Classification Act of 1993 in conjunction with other legislation substantially enlarged the authority and role of magistrate's courts, which now have jurisdiction of all offenses subject to incarceration for not more than 30 days or a fine of not more than $5,000 or both. Additionally, magistrates may order restitution in an amount not to exceed the civil jurisdictional amount provided in § 22-3-10(2). Ordinarily, a magistrate may not order consecutive sentences of more than 90 days except for shoplifting and fraudulent checks. S.C. Code Ann. § 22-3-550 (2007).

Section 22-3-800 now authorizes a magistrate to suspend sentences and order up to 100 hours of community service in lieu of a sentence but not for offenses under Title 50 (fish, game, and water craft), for offenses under § 34-11-90 (fraudulent checks), or for offenses under § 56-1-460 (driving while license canceled, suspended, or revoked) pursuant to provisions of § 56-5-2990 (DUI). If a given offense requires a minimum sentence, the sentence may not be suspended below the minimum. The sentence for a fraudulent check offense under § 34-11-60 may be suspended only on proof of restitution.

Cases with a penalty not exceeding a fine of $5,000 and/or imprisonment for one year may be transferred from general sessions to magistrate's court. S.C. Code Ann. § 223-545 (2007). Upon ten days' written notice to the defendant, the solicitor may petition a circuit court judge to transfer the case to a magistrate's or municipal court, and must then advise the defendant of his right to have his case tried in general sessions court and must explain the difference in the size of the juries in the two classes of court. Under the original law, the defendant had to give his affirmative consent. The law was...