Crash Course in South Carolina Sentencing Law, 0715 SCBJ, SC Lawyer, July 2015, #40

Author:Daniel J. Crooks, III, J.

Crash Course in South Carolina Sentencing Law

No. Vol. 27 Issue 1 Pg. 40

South Carolina BAR Journal

July, 2015

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Release dates, and credits, and sentencing sheets: Oh my!

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0 Daniel J. Crooks, III, J.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Oh yes. State laws on sentencing in South Carolina can be a source of anxiety for many solicitors, defense attorneys and, of course, the individual whose life will be impacted by the four corners of that sentencing sheet. Whether the sentencing is done post-trial or as a result of a plea negotiation, there are several things every criminal law practitioner should consider.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0The importance of the sentencing sheet

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0From a practical perspective, it is vital that the S.C. Department of Corrections (SCDC) be able to rely on the four corners of an unambiguous sentencing sheet.1 Long gone are the days where attorneys and judges could rely solely on the CDR code to convey the intent of the parties and the court in sentencing. In 2007, our Court of Appeals held that "[b]ecause the South Carolina Code of Laws is the controlling authority for classifications, definitions and penalties for criminal offenses, a statute listed on a sentencing sheet, and not a CDR code, will dictate a criminal's sentence."2

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0In addition, it would be helpful if all applicable jail time credit (which should be known at the time of sentencing based on the jail time reports) was noted on the sentencing sheet itself. Listing it can be done by simply checking the box next to the Jail Time Credit line on the sentencing sheet and indicating in the white space to the right either a start date for the sentence or the number of days of Jail Time Credit the court wishes for the defendant to receive. However, if the court checks the Jail Time Credit box, but also lists a specific start date for the sentence or lists a specific number of days for which the defendant should receive credit, and if the start date or specific credits is less than the inmate would normally get in light of SCDC's input of the jail time reports, then SCDC is bound to give effect to the start date or specific amount of credit written on the sentencing sheet. Without the Jail Time Credit listed on the sentencing sheet, SCDC has only the jail time reports from the detention centers to go off of—and SCDC does not always receive all of those reports.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Section 24-13-40's jail time credit allowance is not discretionary, and a sentencing judge's refusal to award this credit is an error of law.3 However, credit for time spent in jail is not allowed if the defendant was in jail (1) on escape from another penal institution or (2) already serving a sentence while awaiting trial/plea/sentencing for another offense. Moreover, house arrest credit is discretionary, and the 2013 amendment to § 24-13-40 is prospective rather than retroactive.4

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0How much time will I do?

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0It's the million-dollar question, and rightfully so. To arrive at an answer, you must first know in which category a particular sentence will fall. There are five main categories (excluding life sentences and death sentences):

(1) Parole-eligible (sometimes referred to as "55%" or "55% -65%" sentences);

(2) No parole (sometimes referred to as "85%" sentences);

(3) Parole-eligible 85% drug offenses (under Title 44, Chapter 53) (more on these later);

(4) Day-for-Day (sometimes referred to as "mandatory minimum" sentences); and

(5) YOA (indeterminate sentences with some mandatory minimums)

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0(1) Parole-eligible ("55%" or "55% - 65%") offenses

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Included within this category are felony Class D and lesser offenses that have no mandatory minimum service requirement. The offender typically will serve between 55% and 65% of the total sentence imposed prior to being released. As a practice pointer, I would strongly discourage telling clients a specific percentage, primarily because if they serve a day over the percentage you tell them, problems will arise (trust me). Instead, the range may be better, with the qualification that their time could be extended for misbehavior. These offenders get out sooner because, under § 24-13-210 (the "Good Time" statute), they earn 20 days of credit per every 30 days of service.5 The most common reason that an inmate with a parole-eligible offense remains longer than the 55-65% mark is disciplinary history, since an inmate can forfeit good time credits for failure to abide by institutional rules. Under § 24-13-230, inmates with parole-eligible offenses also are eligible to be considered for Earned Work Credits (EWC) and Earned Education Credits (EEC).

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0(2) No-parole offenses ("85%") offenses

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Under § 24-13-100, a "no parole offense" is defined as "a class A, B, or C felony or an offense exempt from classification as enumerated in Section 16-l-10(d), which is punishable by a maximum term of imprisonment for twenty years or more." Moreover, § 24-13-150(A) provides that "[notwithstanding any other provision of law, ... an inmate convicted of a 'no parole offense' as defined in Section 24-13-100 and sentenced to the custody of the Department of Corrections, ... is not eligible for early release, discharge, or community supervision as provided in Section 24-21-560, until the inmate has served at least eight-five percent of the actual term of imprisonment" Therefore, an inmate serving a no-parole sentence must be incarcerated at least 85% of the total sentence imposed. However, beginning with the start date of their sentence, these inmates also earn Good Time Credits, although § 24-13-210(B) limits them to earning only three days of credit for every 30 days served. These inmates may also be eligible to earn EWC and EEC. Finally, instead of parole, § 24-21-560 requires inmates serving no-parole offenses to complete a mandatory period of community supervision not to exceed two years.6 DPPPS monitors this program.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0(3) Parole-eligible 85% drug offenses


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