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September 29, 2015

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Gay Divorce in South Carolina

With the Supreme Court ruling in the Obergefell decision that gay marriage is the law of the land, the inevitable question of gay divorce logically follows. According to the Post and Courier, the first gay divorce was granted in Charleston County in December of 2014. If you are a married couple (whether gay or straight), South Carolina divorce laws can seem bizarre and archaic to some. Unless there is a “fault-ground” for the divorce, South Carolina requires couples spend one year continuously separated before a divorce can be granted. This is in contrast to many other states with much shorter separation periods.

“Fault Grounds” in South Carolina are limited grounds in which a party can claim that their spouse is at fault in the divorce. This is in contrast to the one year separation rule, which is the only “no-fault” ground for divorce in SC. Reasons for an at-fault divorce in South Carolina are: habitual drunkenness, physical cruelty, abandonment, adultery, and one-year’s desertion (due to this being the same length of time as the no-fault ground, it is very rarely used). Irreconcilable Differences is not a ground for divorce in South Carolina.

Gay couples are subject to the same divorce grounds as straight couples in South Carolina. Although Family Courts may not be used to seeing gay couples, it is something that they will certainly have to get used to.

February 23, 2015

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What are the Different “Degrees” of Assault and Battery?

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If you’re’ charged with Assault and Battery in Myrtle Beach or the surrounding area, you are probably wondering what the difference is between first-degree, second-degree, and third-degree assault and battery. There are many levels of A&B in South Carolina, and the difference is not as clear-cut as you might think.

Both assault and battery third-degree and second-degree are considered misdemeanors in South Carolina, although the penalty is quite different. Third-degree assault and battery is a 30-day misdemeanor in magistrate court, while Second-Degree A&B is punishable by 0-3 years and is triable in the Court of General Sessions. A third-degree assault and battery is typically prosecuted by the arresting officer, while the second-degree assault and battery is prosecuted by the Solicitor’s Office of the county where the event allegedly took place. Assault and Battery First-Degree as well as Assault and Battery of a High and Aggravated Nature are both felonies, punishable by 0-10 years and 0-20 years, respectively.

All levels of assault and battery have similar elements: “if the person unlawfully injures another person, or offers or attempts to injure another person with the present ability to do so.” The difference between the degrees is the level of injury involved. I’ve compiled a list of the offenses, the penalty, and the level of injury involved.

Assault and Battery of a High and Aggravated Nature requires that “great bodily injury” occur or could have possibly occurred. It is a felony punishable by 0-20 years in prison, of which 85% must be served.

Assault and Battery, First-Degree is a lesser offense of ABHAN and requires that a “serious bodily injury” occur or could have possibly occurred. It is a felony punishable by 0-10 years in prison.

Assault and Battery, Second-Degree is a lesser offense of all of the above, and is a misdemeanor that requires “moderate bodily injury” to have occurred. It is a misdemeanor punishable by 0-3 years in prison.

Assault and Battery, Third-Degree is a lesser offense of all of the above and is a misdemeanor that requires “injury” to another person. It is a misdemeanor punishable by 0-30 days or a fine of up to $500. It is tried in magistrate court.

If you are charged with assault and battery, make sure to contact an attorney you can trust. Call Attorney Grant Smaldone at 843-808-2100 today for a free consultation.

 

February 20, 2015

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Should I get an attorney for a minor traffic ticket?

For most of us, minor traffic tickets such as speeding and running a red light are our only brushes with the criminal justice system in SC. So, if it’s your only brush with the law, you may not know whether to get an attorney on your particular case or not. Let’s face it, most of us don’t have a criminal defense attorney on speed dial, and we aren’t sure if a lawyer will even benefit us for a minor offense.

Truth be told, you can always just show up and pay the fine. Surrender, admit guilt, pay a fine, and be done with it. But will you really be done with it? Many times, traffic offenses can raise your insurance premiums. A higher monthly payment might surpass the small-by-comparison investment in a lawyer. Additionally, multiple tickets can add up to accumulated license points, leading to a possible suspension down the road.

A lawyer can help you wade through the murky world of traffic tickets. Often times, they can work out an arrangement with no points on your license and minimal risk of your insurance carrier raising your premium. Perhaps best of all, you won’t have to appear in court!

So, the answer to the question “should I get an attorney for a minor traffic ticket” is certainly up to you. While it’s always easier to just pay a fine and forget about it, you can be assured that your insurance company will not “just forget about it.”

January 16, 2015

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What is Uber?

 

As of today, Uber, the ridesharing app popular in many large cities, has been told by the Public Service Commission that they are to cease and desist any business activity in South Carolina.

Uber is an app for IOS and Android that allows people in need of a ride to summon a registered driver for Uber, who will then take them to their destination. No cash is exchanged, as they pay through the app (the app is linked to a credit or debit card.) All Uber drivers must be registered, and the registration process includes a criminal background check, certification that the car they are using is in safe operating condition, and a check on the driver’s driving record. Users of Uber enjoy convenience of using an app to both pay for and summon their ride.

Taxi lobbies are putting enormous pressure on local and state governments to ban Uber. They face a serious threat from Uber, as Uber’s business model seeks to do what Napster and later iTunes did to your local record store. Much like Napster, Uber does have some legal flaws that can be used as ammunition for those who seek to fight against it. For example, most state and local governments require taxi’s and taxi driver’s to be licensed, including having a business license, having a special taxi license known as a “medallion.” Additionally, there are questions of insurance coverage for both the Uber driver and any passenger he picks up that have yet to be answered.

However, my guess is that all of these things will sort themselves out in the next several years, and Uber will be on side of innovation and progress. I believe that Unless taxi cabs can adapt, they may find themselves in the same category as the record store and Blockbuster video- a fond memory.

 

 

 

January 9, 2015

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What is a Preliminary Hearing?

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In South Carolina, Rule 2 of the South Carolina Rules of Criminal Procedure guarantee the right of anyone accused of a crime beyond the scope of Magistrate and Municipal Court the right to a preliminary hearing. You must request the preliminary hearing within 10 days of your arrest, and your request must be in writing. You will be notified of your right to the hearing at your arraignment/bond hearing and will most likely be given a copy of the paperwork to request the hearing.

At a preliminary hearing, the State must prove that probable cause existed to issue the arrest warrant. The defense does not typically put up evidence or witnesses. The defense can, and hopefully will, cross examine the State’s witnesses.

Essentially, the preliminary hearing is an avenue to attack the state’s case and try to show that no probable cause existed to issue the warrant that was issued. In my experience, the odds of a case being dismissed at a preliminary hearing varies widely from judge to judge. I have had some judges easily toss out a case (even an attempted murder case), and I have had judges literally say “I do not see any probable cause in this case, but I will bind it over to General Sessions anyway and let them figure it out.”

A major advantage of a preliminary hearing in South Carolina is to see the State’s case. It’s a lot like looking at the other player’s cards while playing a game of poker. It gives an experienced defense lawyer the ability to weigh the strengths and weaknesses of the state’s case before trial time. I believe that although optional, a preliminary hearing is a great way to evaluate the state’s case and put yourself in a better position when it comes time to prepare for trial.

 

December 17, 2014

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Is There a Grand Jury Process in South Carolina?

In light of recent events across the country, some people have asked me about South Carolina’s process involving a Grand Jury. In South Carolina Constitution, article I section 11 states that “no person may be held to answer for any crime the jurisdiction over which is not within the magistrate’s court, unless on a presentment or indictment of a grand jury of the county where the crime has been committed…” Essentially, nobody can proceed to a jury trial in Circuit Court without having been indicted by the grand jury of the county the crime was committed in first.

If a plea agreement was reached in a case before the grand jury has indicted the defendant, the person pleading guilty can still plead guilty if they wish to do so. If they wish to plead guilty and waive their right to have the grand jury of their county hear the case, that is known as a “waiver plea”. In this case, the defendant initials on their sentencing sheet that they do not wish for the grand jury to hear their case. The judge will also ask them, on the record, if they wish to proceed without the grand jury hearing the matter.

Who makes the case to the grand jury?

In South Carolina, unlike many other jurisdictions, the person that will traditionally make the case to the grand jury is the chief investigating police officer/detective. Other states traditionally have a prosecutor speak to the grand jury, but that is not the case in South Carolina. A prosecutor’s involvement with a grand jury is essentially putting a bunch of folders in a box and then having their secretary call the officers involved to tell them when to be at court. (Trust me, I’ve done it).

Do all General Sessions cases have to be heard by the grand jury of my specific county?

Well, no. Absent a waiver of presentment to the grand jury, all cases not within magistrate court jurisdiction have to be presented before a grand jury- we’ve already covered that. And the grand jury must be the grand jury of the county that the offense occurred in- with one big exception: the State Grand Jury.

The State Grand Jury was created by an amendment to the South Carolina Constitution in 1988. The State Grand Jury is a grand jury based in Columbia, SC, that hears specific types of offenses. They have jurisdiction throughout the entire state of SC, and the types of offenses they hear are usually prosecuted by the Attorney General’s Office. These offenses include narcotics of multi-county significance and obscenity offenses, public corruption, and election fraud. Jurisdiction has been broadened to include gang crimes, environmental crimes, computer crimes, terrorism and securities fraud. I refer to State Grand Jury cases as “almost federal” cases, as in, they prosecute crimes that are also often prosecuted by federal law enforcement and often heard in federal court.A good resource to use when reading about the State Grand Jury is the Attorney General’s website-  http://www.scag.gov/criminal-prosecution-division-2#ixzz3MAnVTFZi

What if a Grand Jury does not indict my case? Is that likely to happen?

If twelve out of eighteen grand jurors agree that there is probable cause to move forward on your case and send it to trial, the indictment is said to be “true billed”. If less than twelve find probable cause, it is considered to be “no billed” and the case is essentially dead. In my years as a prosecutor and as a public defender, I have never seen a case no billed. That does not mean that it doesn’t happen- it can and has happened in the past. As a defense attorney, I know that there are many legal defenses and avenues to attack a case. Counting on a grand jury to return a no bill on your case is not one- you are probably more likely to win the Powerball.

 

December 10, 2014

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What is the bond process in South Carolina?

Once you are charged and arrested for an offense, you will be taken to jail. Which jail you are taken to will vary depending on which jurisdiction you were arrested in, and who the arresting agency was. For example, if you were arrested by the Surfside Police Department, you will most likely be taken to the jail in Surfside- however, even if you were arrested in Surfside Beach, you may be taken to J. Reuben Long Detention Center if you were arrested by Horry County Police.

After you’re booked into the jail, you are entitled to a bond hearing. A bond hearing at jail will be held in front of a magistrate judge or municipal judge. For relatively minor offenses such as Simple Possession of Marijuana and Driving Under the Influence, 1st offense, the amount of your bond will typically be the maximum fine allowed by law for your offense- in the case of a DUI, that amount is typically $1022 (if you blew under a .10 BAC) and for Simple Possession of Marijuana it is typically $620. For other, more serious offenses, the judge will consider a variety of factors, including your ties to the community, how long you’ve lived in the area, whether you own any real property in the area, your prior criminal history, the seriousness of the offense you are accused of, and whether or not a “victim” is involved in your case. The judge will set your bond at an amount he/she feels is appropriate to ensure you do not flee from legal proceedings.

What is a Personal Recognizance Bond or PR Bond?

A Personal Recognizance Bond is a bond set by the judge that requires no cash or surety unless you do not appear in court as required. Defendants that receive a Personal Recognizance bond will typically be free to leave jail without putting up any money and without needing to hire a bondsman. Personal Recognizance Bonds are typically given to first-time, low level offenders who have little or no prior record and seem to pose no danger to the community.

What is a Surety Bond?

A surety bond is a bond that is secured by an outside party, typically a licensed, professional bondsman. Bondsmen will typically require a percentage payment of your total bond. For example, if your bond is set by a magistrate judge at $50,000, a bondsman may require a certain percentage (often around 10%) of the bond to be paid to them as a fee for them to pay the $50,000 bond. The bondsman may also set certain requirements for them to stay on your bond- such as check-ins, etc.

What if my bond is denied?

Magistrate judges do not have jurisdiction to set bond on certain offenses. These offenses include Murder, Criminal Sexual Conduct with a Minor in the First Degree, and other offenses that carry a possible term of life imprisonment. Furthermore, a new South Carolina law, 17-15-55(C), forbids magistrate judges from setting bond on a violent offense if the defendant is already out on bond for another violent offense. For example, if you are on bond for Attempted Murder and are arrested again for Attempted Murder, a magistrate judge does not have the authority to set your bond. Also- if a magistrate judge deems it appropriate, bond may be denied if you are charged with a violent offense.

If your bond is denied by a magistrate judge, you are entitled to a bond hearing by a circuit court judge. The primary factors that a circuit judge will consider is whether you are a possible flight risk, and whether you are a danger to the community. A circuit judge will set or deny your bond solely on those factors.

If your bond is denied by a circuit judge, it is unlikely you will receive a bond. South Carolina law 17-15-55(A)(2) forbids the circuit judge from reconsidering bond once it is denied, absent a “change in circumstances.” The “Change in Circumstances” rule is amorphous, and “information regarding defendant’s guilt or innocence” is not a factor that constitutes a change in circumstances. Essentially, even if you can prove your innocence while in jail, if your bond is denied- you cannot get out before trial unless the Solicitor consents.

Obtaining a reasonable bond in South Carolina is the first step in the path to vindication for most criminal defendants. Call 803-406-4376 today to schedule a free consultation to discuss your options to get the fair, reasonable bond that you are entitled to.