If you are charged with simple possession of a controlled substance in SC, you may have pretrial diversion options that let you avoid a trial or conviction – a conditional discharge is one of these options.

Below, we will discuss the basics of conditional discharges in SC, including:

  • Who is eligible for a conditional discharge,
  • The difference between conditional discharges in General Sessions Court and the magistrate courts,
  • The requirements for a conditional discharge,
  • The effects of a conditional discharge, and
  • Expungements after completion of the requirements.

What is a Conditional Discharge in SC?

A conditional discharge in SC is a form of pretrial diversion authorized by SC Code § 44-53-450 that allows a person who is charged with a first-offense minor drug offense to get their case dismissed and expunged without going to trial.

Key Questions & Answers About Conditional Discharges in SC

Getting a conditional discharge is not guaranteed, and it isn’t for everyone in every situation. Look for answers to your questions below, and if you don’t see it give us a call.

1. Can you Get a Conditional Discharge if You Have a Criminal Record? 

You can get a conditional discharge if you have a criminal record, but it must be your first drug offense – you cannot have a prior conviction for “any offense under this article (SC’s drug laws) or any offense under any state or federal statute relating to marijuana, or stimulant, depressant, or hallucinogenic drugs.”

So, for example, if you have a prior conviction for larceny, you can still get a conditional discharge for your pending simple possession of marijuana charge. If you have a prior conviction for simple possession of marijuana, however, you are not eligible for a conditional discharge.

2. Do You Have to Plead Guilty for a Conditional Discharge? 

You must either plead guilty or be found guilty of the pending drug charges before the court can order a conditional discharge.

Then the court can, “without entering a judgment of guilt and with the consent of the accused… defer further proceedings and place him on probation upon terms and conditions as it requires.”

Once the terms and conditions ordered by the court are complete, the court will “discharge the person and dismiss the proceedings against him,” with no adjudication of guilt. Once the case is dismissed, there is no conviction.

If the terms and conditions are not completed, however, the court can enter the guilty verdict and impose punishment – because you have already pled guilty or have been found guilty, you have no right to a trial at this point.

3. What Charges are Eligible for a Conditional Discharge? 

Drug Charges

The court can order a conditional discharge for possession of any controlled substance under Section 44-53-370(c) and (d), or Section 44-53-375(A).

Sections 370(c) and (d) and 375(A) only cover simple possession charges and do not include possession with intent to distribute, distribution, manufacturing, or drug trafficking charges. Although conditional discharges are most often given in simple possession of marijuana cases, simple possession of any drug is eligible for a conditional discharge if there are no prior drug convictions.

Disorderly Conduct Charges

The court can also order a conditional discharge for convictions for disorderly conduct under Section 16-17-530.

There are a few requirements in order to be considered:

  • The conditional discharge must be approved by the solicitor;
  • The defendant has no prior convictions for disorderly conduct;
  • The defendant has no prior convictions for similar offenses related to drunk or disorderly conduct; and
  • The defendant must participate in a treatment and rehabilitation program if one is available.

4. What are the Requirements? 

The court is authorized to impose “terms and conditions as it requires, including the requirement that such person cooperate in a treatment and rehabilitation program of a state-supported facility or a facility approved by the commission, if available.”

If the conditional discharge is done in General Sessions Court, the conditions often include:

  • Supervision by the probation department,
  • Supervision fees paid to the probation department,
  • Community service hours in the judge’s discretion, and
  • Substance abuse treatment when appropriate.

Conditional Discharges in the Magistrate or Municipal Court

Most conditional discharges happen in the magistrate or municipal court and are usually granted for pending charges of simple possession of marijuana. Magistrates cannot order probation; therefore, most conditional discharges in the lower courts are more informal than they would have been in General Sessions Court.

Although the court has the discretion to order any reasonable terms and conditions the court feels are appropriate, most magistrates will simply require the defendant to complete a certain number of community service hours within a specified time and then provide documentation to the court before the case is dismissed.

Expungements After a Conditional Discharge

Once the requirements are completed and the charges have been dismissed, the person can apply to the court for an expungement order to destroy all records related to:

  • Arrest,
  • Indictment,
  • Trial,
  • Guilty verdict or guilty plea,
  • Dismissal, and
  • Discharge.

Once the requirements are met and the case has been expunged, SC law allows the person to deny that they were ever arrested or convicted, and they cannot “be held pursuant to another provision of law to be guilty of perjury or otherwise giving a false statement by reason of his failure to recite or acknowledge the arrest, or indictment or information, or trial in response to an inquiry made of him for any purpose.”

5. How Much Does a Conditional Discharge Cost?

In General Sessions Court, the fee for a conditional discharge is $350, but it is only $150 if the case is in the magistrate court.

In General Sessions Court, however, there may be additional fees for supervision by the probation department. In cases of indigency, the court is authorized to waive the conditional discharge fee.

6. Can You Get More than One Conditional Discharge? 

You can only get a conditional discharge once in SC, and, although the case is expunged, SLED will keep a record of the conditional discharge solely to determine whether a person has received a discharge before.

A conditional discharge does not make a person ineligible for other types of pretrial diversion – if your drug charges are dismissed and expunged, and then you get another drug charge in the future, it is possible to complete pretrial intervention (PTI) for the new charges (if the prosecutor agrees to it).

Questions About Conditional Discharges in SC? 

If you have been charged with simple possession of a controlled substance in SC, you may have options that allow you to avoid trial and a conviction.

Contact the SC criminal defense attorneys at Templeton, Mims & Ward at 843-285-5090 or by sending us an email through our website to set up a consultation and find out how we can help.

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