Introduction
The dispositional hearing is the sentencing phase of the family court process. It is the hearing where the judge determines what is most appropriate regarding treatment and custody for a child who has been adjudicated delinquent. In making this determination, the judge will consider the seriousness of the offense, the child’s prior record, the child’s family background, school records, and any available social reports or evaluations.
The dispositional hearing may be held immediately following the adjudicatory hearing, or it may be scheduled for a later date pending an evaluation of the child’s circumstances and treatment needs.
Quick View
- Determine the appropriate sentence for the child.
- The dispositional hearing may immediately follow the adjudicatory hearing upon a finding of guilt, or may be held at a later date following an evaluation.
- The SC Rules of Evidence (other than with respect to privileges) do not apply in dispositional hearings, or granting or revoking probation. Rule 1101(d), SCRE.
- The judge who presided over the adjudicatory hearing must preside over the dispositional hearing as well, unless a change of venue is made pursuant to Rule 33(b), SCRFC, or unless “otherwise unavailable.” Rule 37, SCRFC.
Hearing Checklist
- See Preliminary Matters in Section 1, Hearings General/Hearing Checklist.
- Explain purpose of hearing.
- Identify parties and other persons present.
- If the case involves a victim who is not present, the judge must ask the solicitor to verify that a reasonable attempt was made to notify the victim sufficiently in advance to attend. If timely notice was not made, the hearing must be delayed for a reasonable time to allow notice. § 16-3-1550(D).
- Have the solicitor call the case.
- Hear from the DJJ representative who will report on the child's school records and prior court history. The DJJ representative will also highlight the evaluation report if an evaluation was conducted, which the judge will have read in full prior to the hearing, and make a recommendation on behalf of DJJ as to sentencing.
- DJJ must recommend appropriate dispositional options to the court, including services available to the child. § 63-19-1010(B).
- DJJ may change its recommendation in court or prior to a court hearing if any of the child’s charges have been reduced or dismissed as part of a plea bargain.
- Allow solicitor opportunity to address the court and make a recommendation regarding sentencing.
- Hear or review any victim impact statement, written or oral, and allow defense an opportunity to respond to the statement. § 16-3-1550(F).
- Allow victim, if present, opportunity to address the court.
- Hear from defense attorney who will speak on the child’s behalf and request a sentence for child.
- Ask child and child’s parents questions as needed before sentencing child.
- Make a ruling as to sentencing.
- Notify child of record expungement requirements and process. § 63-19-2050(G).
- Child may petition the court for expungement order if found not guilty in adjudicatory hearing.
- Court shall grant the order regardless of child's age.
- Granting of this order is nondiscretionary.
- No fee may be charged for expungement.
- Child may petition the court for expungement order if taken into custody for, charged
with, or adjudicated delinquent for a status offense.
- Granting of order is nondiscretionary if criteria are met.
- Court shall not grant the order unless it finds the child is at least 18, has successfully completed any sentence imposed, has not been subsequently adjudicated for or convicted of any criminal offense, and does not have any pending criminal charges.
- Child may petition the court for expungement order if taken into custody for, charged
with, or adjudicated delinquent for multiple status offenses or for a nonviolent crime.
- The granting of this order is discretionary with the court.
- The court shall not grant the order unless it finds the child is at least 18, has successfully completed any sentence imposed, has not been subsequently adjudicated for or convicted of any criminal offense, and does not have any pending criminal charges.
- Child may not petition the court for expungement order if child has a prior adjudication for an offense that would carry a maximum of 5 or more years if committed by an adult.
- The solicitor or law enforcement may file an objection to the expungement based on ineligibility of the charges or additional pending charges, and the expungement must then be heard by the court.
- Child may petition the court for expungement order if found not guilty in adjudicatory hearing.
- Court may dismiss petition or otherwise terminate its jurisdiction on motion of either party or its own motion. § 63-19-1440(A)(7).
- Can be for any amount of time up until the child’s 20th birthday. § 63-19-1410(A)(3).
- “Probation must not be ordered or administered as punishment but as a measure for the protection, guidance, and well‑being of the child and the child’s family. Probation methods must be directed to the discovery and correction of the basic causes of maladjustment and to the development of the child’s personality and character, with the aid of the social resources of the community.” § 63-19-1410(A)(3).
- Best practice is to “set a definite period of probation.” In the Matter of Westbrooks, 288 S.E.2d 396 (S.C. 1982).
- DJJ may grant up to a 10-day reduction of the probationary term for each month child is compliant with conditions of his or her probation order. § 63-19-1835.
- Conditions may include:
- Monetary restitution. § 63-19-1410(A)(3).
- When establishing amount, court must consider monetary loss to victim, number of individuals involved in causing the loss, child’s culpability, and child’s ability to pay the amount over reasonable period of time.
- DJJ will handle the transferring of court‑ordered restitution from child to victim.
- Monetary restitution. § 63-19-1410(A)(3).
- Community Service. § 63-19-1410(A)(3).
- Should be “of a constructive nature designed to make reparation and to promote the rehabilitation of the child.”
- Fine. § 63-19-1410(A)(3).
- Cannot exceed $200.
- Can only be ordered if offense is one for which a fine can be ordered in adult criminal court.
- A fine may be imposed when commitment is suspended but not in addition to commitment.
- A child under the family court's jurisdiction for disposition of an offense that occurred before the child's 18th birthday may be committed to DJJ which shall arrange for placement in a suitable corrective environment. § 63-19-1440(A).
- Children under 12 may be committed only to the custody of DJJ which shall arrange for placement in a suitable corrective environment other than institutional confinement. § 63-19-1440(A).
- A child seriously handicapped by mental illness or intellectual disability may not be committed to a DJJ institution. § 63-19-1450(A).
- A predisposition evaluation of the child must be conducted before ordering commitment unless waived in writing pursuant to § 63-19-1440(C).
- Commitment must be for an indeterminate period not to exceed the child's 22nd birthday unless sooner released by DJJ, or for a determinate period of up to 90 days. § 63-19-1440(B).
- The court can order that commitment be suspended upon DJJ securing an alternative placement.
- Child will receive credit for time served toward parole guidelines if indeterminately committed or date of release if determinately committed for each day spent in pre-adjudicatory detention or pre-dispositional evaluation. § 63-19-1440(I).
- Determinate commitment
- 90-day maximum for each adjudicated offense. § 63-19-1440(B).
- Up to 6 months for contempt of court. In the Interest of Vincent J., 509 S.E.2d 261 (S.C. 1998).
- § 63-10-1440(F) restricts the court from sentencing a status offender contemnor to more than a 90-day sentence. In the Interest of Tonisha G., 520 S.E.2d 807 (S.C. 1999).
- Commitment is limited to a determinate sentence of up to 90 days for a child:
- adjudicated delinquent for a status offense, other than truancy;
- in contempt of court for violation of a court order to attend school or an order issued as a result of child's adjudication for a status offense; or
- determined by the court to have violated the conditions of probation in a court order issued as a result of child's adjudication for a status offense including truancy.
- Order must acknowledge that child has been advised of all due process rights afforded to a child offender and that the court has received information from the appropriate state or local agency or public entity that has reviewed the facts and circumstances causing child to be before the court. § 63-19-1440(F).
- A child who has served at least two-thirds of a determinate sentence may be released
by DJJ prior to the expiration of the determinate period for "good behavior." § 63-19-1440(H).
- The court, in its discretion, may state in the order that the child is not to be released prior to the expiration of the determinate period ordered by the court. § 63-19-1440(H).
- Indeterminate commitment not to exceed child’s 22nd birthday unless sooner released by DJJ. § 63-19-1440(B).
- The releasing entities (DJJ and the Juvenile Parole Board) have established parole
guidelines for determining the length of commitment for children serving indeterminate
sentences at DJJ.
- Parole guidelines are the minimum and maximum number of months the child will likely serve
- The guidelines run from 1-3 months to 36-54 months.
- While the most serious committing offense is the main factor that determines the guidelines, additional committing offenses and prior adjudications are also factored in.
- There is a presumption against release prior to the minimum and retention after the maximum
- When releasing a child from an indeterminate commitment, the releasing entity may
grant the child an unconditional or a conditional release.
- A child conditionally released on parole will be under the releasing entity’s authority for a specified period of time not to exceed the child’s 22nd birthday, is “subject to the conditions and restrictions of the release, and may be returned to a correctional institution for violation of aftercare rules or conditions of release on the order of the releasing entity. § 63-19-1850(A).
- A child released on parole may be required to pay restitution, participate in work ordered by the court, and/or participate in community service programs. § 63-19-1850(B).
- The releasing entities (DJJ and the Juvenile Parole Board) have established parole
guidelines for determining the length of commitment for children serving indeterminate
sentences at DJJ.
- If child is adjudicated delinquent for a status offense or found in violation of a court order relating to a status offense, the court can suspend or restrict child’s license until child’s 18th birthday. § 63-19-1420(A).
- If child is adjudicated delinquent for a criminal offense, found in violation of a court order relating to a criminal offense, or found in violation of probation, the court can suspend or restrict child’s license until child’s 19th birthday. § 63-19-1420(B).
- If the court suspends child’s driver’s license, child must submit the license to the court which shall forward it to the DMV for license suspension. § 63-19-1420(C).
- Court may restrict child’s driving privileges to driving only to and from school or work or as the court considers appropriate. Upon the court restricting child’s driver’s license, child must submit the license to the court which shall forward it to the DMV for reissuance with the restriction clearly noted. § 63-19-1420(D).
- Upon suspending or restricting child’s driver’s license, judge shall complete a form provided by and which must be remitted to the DMV. § 63-19-1420(F).
- Order diversion. State v. Tootle, 500 S.E.2d 481 (S.C. 1998).
- Order concurrent sentence if consecutive sentence is required by statute. Treece v. State, 616 S.E.2d 424 (S.C. 2005).
- Sentences are deemed to run concurrently "unless the intention that one should begin at the end of the other is expressed." Finley v. State, 64 S.E.2d 881, 882 (S.C. 1954).
- "Judicial discretion in…determining that sentences run concurrent or consecutive is subject to statutory restriction." State v. De La Cruz, 393 S.E.2d 184, 186 (S.C. 1990).
- Order both restitution and commitment to DJJ.
- “The family court exceeded its statutory authority by ordering restitution other than as a condition of probation.” In the Interest of Joseph Eugene M., 338 S.E.2d 328 (S.C. 1985).
- Re-sentence after term of court has ended where no timely motion to reconsider has been made by either party. State v. Campbell, 656 S.E.2d 371 (S.C. 2008). Rule 29, SCRCrimP.
- A child who has not been paroled or released from DJJ must be transferred to the Youthful Offender Division of Department of Corrections at age 18 if committed to DJJ following an adjudication for a violent offense, or age 19 for any other offense. § 63-19-1440(E).
- DJJ, when authorized by a circuit court order, must temporarily transfer to the Youthful Offender Division a child older than 17 whose presence in DJJ appears to be seriously detrimental to the welfare of others in custody. Children transferred pursuant to § 63-19-1650 are under the YOD’s authority but are subject to release by the Juvenile Parole Board. § 63-19-1650(A).
- Fingerprinting. §§ 63-19-2030(G)-(L).
- Photographing. § 63-19-2030(F).
- DNA testing. § 23-3-620.
- Driver’s license suspension. § 63-19-1420).
- School notification. § 63-19-2020(E).
- Transfer from DJJ to Department of Corrections at age 17 or 19. § 63-19-1440(E).
- Conditional release following DJJ commitment. § 63-19-1850.
- Sex offender registry (Article 7 Chapter 3 of Title 23).
- Sexually Violent Predator Act (Article 7 Chapter 48 of Title 44).
- Impact on immigration status, including deportation.
- Loss of scholarships (e.g., Hope and LIFE).