1. Understanding How Prison Sentences Work
Chris Florian
Deputy General Counsel
South Carolina Department of Corrections

2. Call Us First
We can help draft the proposed sentencing order to ensure it will have the intended result.
SCDC General Counsel:

3. The Maxout Date 4 types of sentences
Parolable offenses
85% offenses
Day-for-day
YOA sentences
Substantial difference in percentage of time offender would serve until maxout

4. Parolable Sentences
Felony D and lesser offenses with no mandatory minimum
Typical offender will serve between 60% and 70% before maxout
Service Time
Good Time Credits – SC Code §
20 days per month if disciplinary free
Can lose earned credits for a disciplinary offense
Earned Work/Education Credits – §
Amount varies
Maximum is 1 day for every 2 days employed or enrolled
Service Time
Good Time
Work Credits

5. 85% Sentences “No parole” offenses S.C. Code § 24-13-100
Defined as Class A, B, or C felonies, or offenses exempt from classification
Cannot be released until served 85% of the sentence
Service Time
Good Time Credits – SC Code §
3 days per month if disciplinary free
Earned Work/Education Credits – §
6 days per month if participating
Service Time
Good Time
Work Credits

6. Day-for-day offenses
Offenses with mandatory minimum periods of incarceration that must be served day-for-day.
Cannot reduce service time below mandatory minimum through earned work credits or good time credits.
Example: Nelson v. Ozmint, 390 S.C. 432, 702 S.E.2d 369 (2010)
Requires day-for-day service on CDV 3rd.
Service Time

7. YOA Sentences Targeted institutional programming
Administrative Release Authority
Still in development
Panel of 3-5 members to approve YOA parole release and revocation
Considers 3 factors
Severity of crime as measured by Release Matrix
Release Recommendations from community, victim(s) and institution
Risk Assessment Score as measured by Global Risk Assessment Device (GRAD)
Intensive Supervision Program

8. Sentence Calculation on the Internet
Start at

14. Common Pitfalls to Watch Out For

15. Conflicting Sentencing Orders
The sentencing judge pronounces one sentence and writes a different sentence

16. Conflicts between Pronouncement of Sentence and Written Order
Boan v. State, 388 S.C. 272, 695 S.E.2d 850 (2010)
Oral pronouncement: 20 years plus 10 years consecutive
Written order: 30 years plus 10 years consecutive
“In a situation such as the one on appeal, due process requires the judge's oral pronouncement control over a conflicting written sentencing order.”

17. But when the situation is reversed…
Tant v. SCDC, 395 S.C. 446, 718 S.E.2d 753 (Ct. App. 2011) (petition for cert. pending)
Oral pronouncement: = 40 years
6 5-year terms to run consecutively to each other
Written order: = 15
Silent as to whether the 5 year terms run consecutively to each other
“Under ordinary circumstances, SCDC must determine the sentence imposed by the trial court from the sentencing sheets. If there is some ambiguity in the sentencing sheets, SCDC may examine the transcript of record to determine the intent of the sentencing judge.”
What about Boan?
“There are some situations in which SCDC may look beyond unambiguous sentencing sheets.”

18. Pre-Conviction Jail Time
Subsequent Concurrent Sentences

19. Subsequent Concurrent Sentences: The Problem
The jail time statute - SC Code §
Automatic credit for time served before sentencing
No credit for home detention. State v. Higgins, 357 S.C. 382, 593 S.E.2d 180 (Ct. App. 2004)
With 2 exceptions:
Escape
Already serving a sentence for another offense
The Court has the power to award a specific amount of jail time under the statute

20. Subsequent Concurrent Sentences: The Problem
Sentence A
Sentence B
Under the statute (SC Code § ), the second sentence starts on the date of sentencing!
Running them concurrently doesn’t change the jail time credit.

21. The Solution
Sentence A
Sentence B
Use the Court’s power to award a specific amount of jail time
Set sentence start date to same start date as sentence already being served
Indicate in the “Other” section of the sentencing sheet

22. Youthful Offender Act Mandatory Minimums
Second-Degree Burglary

23. YOA Sentences for Second-Degree Burglary: The Problem
S.C. Code now has a 3-year mandatory minimum for YOA 2nd degree burglary sentences.
Both violent and non-violent.
Persons convicted of 2nd degree burglary and sentenced under YOA must serve 3 years, day-for-day.
Disqualifies these inmates for the shock incarceration program.

24. YOA Sentences for Second-Degree Burglary: The Solution
Mandatory minimum does not apply to other related offenses.
Where there are multiple offenses
Seek incarcerative sentence on other offenses
Ask for adult offender sentence instead of YOA
No mandatory minimum
Still could be eligible for shock incarceration
But offender would lose benefits of YOA

25. Concurrent Federal and State Sentences
Will they really run concurrently?

26. Concurrent Federal and State Sentences: The Problem
Will they really run concurrently?
The federal rule: 18 USC § 3585
Federal sentence starts when defendant arrives in federal custody
BOP does not defer to State sentencing order
BOP typically accepts custody only if they have “primary jurisdiction”
Primary jurisdiction is the first jurisdiction to make arrest.

27. Concurrent Federal and State Sentences: The Solution
Encourage coordination with federal authorities
BOP gives greater deference to federal orders
BOP has power to designate SCDC as a facility for service of the federal sentence.
18 USC § 3621.
Sentences would then run concurrently
State waiver of primary jurisdiction
Rarely done
Shumate v. U.S., 893 F. Supp. 137 (NDNY 1995)

28. Common Law Escape or Statutory Escape
Automatic consecutive sentence?

29. Two Escape Offenses – the Problem
There are two possible escape offenses in South Carolina.
Common law escape. State v. Walker, 311 S.C. 8, 426 S.E.2d 337 (Ct. App. 1992)
Statutory escape. SC Code §
What are the rules for consecutive or concurrent sentencing?

30. Two Escape Offenses – the Solution
Statutory escape.
Term of imprisonment must be consecutive to original sentence and sentences previously imposed. SC Code § (C).
Will run consecutively unless order says otherwise.
Common law escape.
Penalty comes from S.C. Code § (sentence where no punishment is provided)
“The court shall award such sentence as is conformable to the common usage and practice in this State, according to the nature of the offense, and not repugnant to the Constitution.”
Will run concurrently unless order says otherwise.

31. Changes in Sentencing Law
State v. Varner, 310 S.C. 264, 423 S.E.2d 133 (1992)
Language of statute controls
But if there is nothing in the statue:
If the penalty is greater under new statute, apply law as of date of offense
If the penalty is less under new statute, apply law as of date of sentencing

32. Final Thoughts
SCDC is not in court when defendant is sentenced; we are not part of the plea negotiations
Use the sentencing sheet to make Court’s intent clear
Use the “Other” part of the sentencing sheet
We are happy to help in preparing a sentencing order to reflect Court’s intent

33. THE END
Questions?