Failure to appear in court in South Carolina can have serious consequences – when you are scheduled to be in court, your name is on the docket, and a judge is expecting you to be there. Showing up to court is not optional.
In most cases, a bench warrant for failure to appear could have been avoided with some preparation and communication with your attorney and the court. In some cases, a bench warrant for failure to appear can be resolved and lifted once your attorney gets involved in the process.
In this article you will learn:
- how to avoid getting a bench warrant for failure to appear,
- what to do after you miss your court date, and
- the potential penalties that you may be facing if you fail to appear on your court date.
Failure to Appear in Court
First of all, make sure that you know when your court dates are – take it seriously, calendar your court dates, set reminders for yourself, and stay in touch with your attorney to be sure that you know when you are supposed to appear in court.
If you have been scheduled to appear in court, whether it was an order from a judge or a date that was scheduled by the prosecutor, you must be there. This includes all court dates, unless your attorney confirms that you have been excused or the court date has been rescheduled, including:
- Initial court dates found on a blue ticket;
- Initial appearances, docket appearances, and other “roll call” dates in general sessions court;
- Arraignments or other court proceedings scheduled by the prosecutor;
- Trial dates in general sessions court, magistrate court, or the municipal court; or
- Sentencing hearings after a conviction.
If you are a college student, and you miss class one day, it’s not likely that anyone will say anything to you. If you are employed, and you miss work one day, you may be forgiven and allowed to keep your job. But, if you miss a court date, you may end up in jail.
What should you do if you know in advance that you cannot make it to your court date? Or, what if you did not know about the court date or you just forgot about it?
The Two Scenarios of Failure to Appear
There are two main ways that you may have gotten yourself in this situation – you either know in advance that you can’t make your court date or you already missed it. What you should do about it depends on which category you fall into.
If You Know You Won’t Be Able to Make it to Court
Court is not optional – if you have somewhere else to be, reschedule that other thing and make arrangements to be in court.
On the other hand, if you know that you will be prevented from appearing in court by something out of your control – for example, a hospitalization, an out-of-state arrest, or some other event – call your attorney immediately and let them know the situation. If there is an important event such as a wedding, graduation, or vacation, call your attorney and ask if they can get you excused or your court date rescheduled, but make arrangements to be in court until you hear otherwise from your attorney.
Do not call the clerk of court. Do not call the prosecutor’s office. Call your attorney, let them communicate with the court for you, and wait for their response.
Your attorney is your lifeline. The clerk of court’s loyalty is to the court, not you. The prosecutor is there to prosecute you and will not hesitate to put you in jail. Anything that you say when you talk to a clerk or prosecutor may be used against you later – always let your attorney talk to the court for you.
If you are running late to court, call your attorney and let them know where you are and when you can be there. Even if you arrive late, your attorney may be able to prevent the court from issuing a bench warrant if your attorney knows where you are and when you will arrive at the courthouse.
If You Missed Your Court Date
But what should you do if you woke up this morning and realized your court date was yesterday?
Odds are, you may already have a bench warrant for your arrest – call your attorney immediately. Do not call the clerk of court. Do not call the prosecutor. Do not call the police department. Call your attorney.
In some cases, your attorney may be able to prevent a bench warrant from being issued by letting the prosecutor know you will arrive late. In other cases, it is too late. If a bench warrant has already been issued, any police officer who comes into contact with you is authorized to arrest you, and you will then have to wait in jail until a hearing is scheduled, which could take weeks or even months.
Call your attorney – your attorney may be able to get the prosecutor to “lift” the bench warrant. If not, your attorney can file a motion asking the court to lift the bench warrant. If you are not picked up before the hearing is scheduled, if you appear on the date of the motion hearing, and if the court agrees to lift the bench warrant, you may be able to avoid jail.
Penalties for Failure to Appear
What are the penalties for failure to appear in court? Apart from the court issuing a bench warrant for your arrest, you could be charged with the criminal offense of failure to appear or you could be held in contempt by the judge.
Failure to Appear is a Criminal Offense
Willful failure to appear in court is a criminal offense punishable by up to five years if the underlying charge was a felony or up to one year if the underlying charge was a misdemeanor punishable by a year or more:
A person released pursuant to the provisions of Chapter 15, Title 17 who wilfully fails to appear before the court as required must:
(1) if he was released in connection with a charge for a felony or while awaiting sentencing after conviction, be fined not more than five thousand dollars or imprisoned for not more than five years, or both; or
(2) if he was released in connection with a charge for a misdemeanor for which the maximum possible sentence was at least one year, be fined not more than one thousand dollars or imprisoned for not more than one year, or both.
Will you be charged with the criminal offense of failure to appear? Probably not, but you could be, and you must assume that you will be if you just don’t show up and there was nothing preventing you from getting to the courthouse.
Contempt of Court
If a judge ordered you to appear in court on a particular day, you can also be held in contempt of court for disobeying a judge’s order.
Contempt of court can be a separate criminal offense that can result in jail time, a fine, or both, and it can result in a criminal record for contempt of court – something that police, prosecutors, and judges may hold against you in the future.
Will you be held in contempt for failure to appear? Probably not, but you could be, and you must assume that you will be if a judge ordered you to be in court on that day.
Bench Warrant for Failure to Appear
If you are supposed to be in court and you fail to appear, the prosecutor will usually get a bench warrant signed on the same day, authorizing your arrest.
Law enforcement will be notified that there is a bench warrant, and then you may be arrested and held in jail until your attorney can get a hearing scheduled to ask the court to lift the bench warrant.
Will they issue a bench warrant? Almost certainly…
Although your attorney may be able to avoid a bench warrant or get a bench warrant lifted if they know where you are, in most cases the prosecutor will issue a bench warrant and they will leave you in the jail unless and until a judge orders the bench warrant lifted.
Did you miss a court date or know you will miss one?
Stay in touch with your attorney to make sure that you know your court dates, calendar them, and take them seriously. If you know you can’t make a court date, call your attorney immediately and let them know the situation. If you have already missed a court date, call your attorney immediately so they can talk to your prosecutor and file a motion to have your bench warrant lifted.
If you have missed your court date in South Carolina, immediately contact the attorneys at Templeton Mims & Ward.
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