Is it a felony? Is it a misdemeanor?

Does it matter?

For purposes of sentencing, it doesn’t necessarily matter in South Carolina. We don’t have sentencing guidelines in state court, and the potential range of penalties for each crime is found in the statutes for that crime – in SC, defense attorneys don’t have to research whether a crime is a Class A felony or a Class B misdemeanor to determine what the potential sentence will be.

There are some situations where it can make a difference on “collateral issues,” however – sometimes unexpectedly. When can having a felony on your record hurt you?

Below, I’ll explain what the difference is between misdemeanors and felonies in South Carolina, when it matters, and when it doesn’t.

Classifications of Felonies and Misdemeanors In SC

First, if your case is dismissed or if you are acquitted at trial, it’s not going to matter whether the crime was a misdemeanor or felony – it’s over, and it’s not on your record.

In most cases, depending on the circumstances and our client’s goal, we intend to get your case dismissed or win it at trial. But, many people do plead to lesser offenses, some people are found guilty at trial, and there are many, many people who already have criminal records who want to know how their convictions will affect them and what their rights are…

How Are Felonies and Misdemeanors Classified in South Carolina?

As a general rule, anything that is punishable by three years or less in South Carolina is classified as a misdemeanor, and anything punishable by more than three years is a felony. SC Code section 16-1-20 outlines the penalties for the different classes of felonies and misdemeanors:

(1) for a Class A felony, not more than thirty years;

(2) for a Class B felony, not more than twenty-five years;

(3) for a Class C felony, not more than twenty years;

(4) for a Class D felony, not more than fifteen years;

(5) for a Class E felony, not more than ten years;

(6) for a Class F felony, not more than five years;

(7) for a Class A misdemeanor, not more than three years;

(8) for a Class B misdemeanor, not more than two years;

(9) for a Class C misdemeanor, not more than one year.

But then, SC Code Section 16-1-10 (D) provides a long list of offenses that are exempt from the classification system…

Why Classification Doesn’t Matter in South Carolina

When faced with a choice between a misdemeanor conviction or a felony conviction, obviously, choose the misdemeanor. But, let me take a moment to dispel some myths about the impact of felony and misdemeanor classification in SC.

For purposes of SC law and sentencing procedures in South Carolina, it rarely matters whether an offense is classified as a felony or a misdemeanor. Why?

Penalties are Not Determined by Felony Classification in SC

When the legislature passes a criminal law or amends a criminal law, they don’t say, “punishable as a class B felony.” Not usually, anyway. Also, unlike federal court and some other states, SC state court does not have sentencing guidelines.

The legislature writes the minimum and maximum sentences into the statute that defines the criminal offense – then that determines whether the offense will be classified as a felony or misdemeanor.

Attorneys don’t go to classification of felonies and misdemeanors in the SC Code to determine what the minimum or maximum sentence for an offense will be – they go to the statute that defines the crime that their client is charged with.

One exception is when a person is charged with accessory after the fact – pursuant to SC Code Section 16-1-55, the punishment for accessory after the fact is “based upon the classification below the punishment provided for the principal offense, except for Class A, Class B, and Class C felonies or murder. If the principal offense is a Class A, Class B, or Class C felony or murder, the penalty must be as prescribed for a Class D felony.”

Can a Convicted Felon Vote in SC?

In many states, convicted felons lose their right to vote – it’s a hot political topic right now and advocates are working to change that nationwide.

If you live in one of those states, the distinction between a felony and a misdemeanor might be very important, unless you don’t care about your right to vote.

In South Carolina, a person convicted of a felony offense loses their right to vote but only until they complete their sentence – once they are released from prison and have completed any probation or parole, their right to vote is automatically restored to them.

Does a Felony Conviction Disqualify You from Jury Service in SC?

Assuming you want to serve on a jury – many people are glad for any excuse to get out of jury service…

South Carolina does not distinguish between a felony or misdemeanor conviction for purposes of jury service. You are prohibited from serving on a jury if you have a conviction on your record for a crime that is punishable by a year or more (the actual sentence you received doesn’t matter) and your civil rights have not been restored by pardon or amnesty.

That will include any felony offense in SC, but it also includes a lot of misdemeanor offenses – the point is that what matters is not whether the offense is a felony or misdemeanor. What matters is whether the offense carries a potential sentence of one year or more…

Does a Felony Conviction Prevent You from Getting an Occupational License in SC?

It probably will, but not because it’s a felony.

SC Code Section 40-1-110 contains a list of the types of crimes and other conduct that can that can result in professional discipline or denial of a professional license. It includes felony convictions, as well as a broad range of other conduct that includes fraudulent acts and conduct that would result in misdemeanor convictions.

Furthermore, SC Code Section 40-1-140 makes it clear that a felony conviction alone cannot be the basis for refusing to give someone an occupational license unless it directly relates to the profession for which the person is seeking a license:

A person may not be refused an authorization to practice, pursue, or engage in a regulated profession or occupation solely because of a prior criminal conviction unless the criminal conviction directly relates to the profession or occupation for which the authorization to practice is sought. However, a board may refuse an authorization to practice if, based upon all information available, including the applicant’s record of prior convictions, it finds that the applicant is unfit or unsuited to engage in the profession or occupation.

Does a Felony Conviction Prevent Me from Possessing a Firearm in SC?

Yes, but not because it’s a felony. SC’s firearms laws do not distinguish between misdemeanors or felonies.

SC Code Section 16-23-30 (B) makes it a crime for a person to possess a handgun if they:

• Have been convicted of a crime of violence;
• Are a fugitive from justice;
• Are a habitual drunk or drug addict; or
• Have been adjudicated mentally incompetent.

A “crime of violence” is defined in SC Code Section 16-23-10 (3) as:

[M]urder, manslaughter (except negligent manslaughter arising out of traffic accidents), rape, mayhem, kidnapping, burglary, robbery, housebreaking, assault with intent to kill, commit rape, or rob, assault with a dangerous weapon, or assault with intent to commit any offense punishable by imprisonment for more than one year.

…which does not include all felonies and does include some misdemeanors.

SC Code Section 16-23-500 prohibits possession of a firearm (including handguns and long guns) or ammunition if you have been “convicted of a violent crime, as defined by Section 16-1-60, that is classified as a felony offense.”

So, 1) it must be a felony; and 2) it must be a “violent crime” that is contained in the list of offenses found in SC Code Section 16-1-60. Some crimes found in 16-1-60 are misdemeanors, and many felony offenses are not found in 16-1-60.

Federal law is more restrictive, but it also does not make the distinction between felony or misdemeanor – 18 U.S. Code § 922 (g) makes it a crime for a person to possess a firearm or ammunition if they have a conviction for a crime that was punishable by a year or more or a conviction for domestic violence, among other things. That includes felony offenses and it includes many misdemeanor offenses.

When Does it Matter if a Conviction is a Felony or a Misdemeanor?

You (or your attorney) need to research the laws that apply to your specific concern.

It could make a difference for purposes of finding housing, to some employers, for financial aid for school, or for immigration status (consult an immigration attorney to be sure).

In most cases, if you intend to negotiate a guilty plea and your attorney has some latitude in choosing the offense that you plead to, the benchmark that you should be concerned about is whether the offense is punishable by a year or more in prison, which includes felony offenses but also includes many misdemeanor offenses.

Charleston, SC Criminal Defense Lawyer

Charleston criminal defense attorney Grant B. Smaldone focuses his practice on criminal defense in SC state courts and SC federal court.

If you have been charged with a crime in SC or have questions about how we can help, call now at (843) 808-2100 or send us a message to speak with a Charleston, SC defense attorney today.