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Joseph F. Rice School of Law

Waiver Hearing

Introduction

Waiver is one of the most significant actions that can occur in the early stages of a case involving a child charged with a criminal offense. Waiver is the transfer of jurisdiction of a child’s case from family court to adult criminal court. The waiver process is initiated by the solicitor who makes a motion to transfer jurisdiction of the case. The solicitor will also make a motion that DJJ conduct a pre-waiver evaluation. The defense may also have the child undergo an independent expert evaluation.

Upon a motion to transfer jurisdiction, the family court must determine if it is in the best interest of both the child and the community before granting the transfer request. State v. Kelsey, 502 S.E.2d 63, 70 (S.C. 1998). The family court must consider eight factors, as approved by the Supreme Court in Kent v. United States, 383 U.S. 541 (1966), in making this determination. State v. Pittman, 647 S.E.2d 144, (S.C. 2007).

This waiver chart [pdf] provides a snapshot of age and offense requirements for waiver to adult criminal court in South Carolina.

Quick View

§ 63-19-1210. Transfer of jurisdiction.
  • Determine whether to retain jurisdiction in the family court or transfer jurisdiction to adult criminal court.
  • Within 30 days after the filing of a petition in the family court alleging the child has committed murder or criminal sexual conduct, the petitioner may request in writing that the case be transferred to general sessions court. The family court judge determines this request and if denied, the petitioner may appeal within 5 days to the circuit court. § 63-19-1210(6).
  • Although a child may not initiate the waiver of jurisdiction, he or she may consent to the transfer. State v. Lamb, 649 S.E.2d 486 (S.C. 2007).
  • When jurisdiction is relinquished by the family court in favor of another court, the court shall have full authority and power to grant bail, hold a preliminary hearing and any other powers as now provided by law for magistrates in such cases. 
    § 63-19-1210(8).

Hearing Checklist

  • See Preliminary Matters in Section 1. Hearings General/Hearing Checklist.
  • Review pre-waiver evaluation report.
  • Explain purpose of hearing.
  • Identify parties and other persons present.
  • Make required determinations and findings.
    • The court must consider eight factors enumerated in Kent v. United States, 383 U.S. 541, (1966) before granting a motion to transfer jurisdiction, and the serious nature of the offense is a major factor in the transfer decision.State v. Pittman, 647 S.E.2d 144 (S.C. 2007); State v. Corey D.,529 S.E.2d 20, 26 (S.C. 2000).  The eight factors of Kent include:
      1. Seriousness of alleged offense and whether waiver is necessary to protect the public;
      2. Whether alleged offense was committed in an aggressive, violent, premeditated, or willful manner;
      3. Whether alleged offense was against persons or property, greater weight being given to offenses against persons especially if injury resulted;
      4. Whether there is sufficient evidence for a Grand Jury to return an indictment;
      5. Whether there are adult co-defendants that make it more desirable to present the entire case in one court;  
      6. Child’s level of sophistication and maturity;
      7. Child’s prior criminal record; and
      8. Prospects for adequate protection of the public and likelihood of reasonable rehabilitation of child using services currently available to the court.
  • Determine eligibility of child for waiver.
    • A family court judge has the authority to waive a child who is: 
      • any age and charged with murder. State v. Corey D., 529 S.E.2d 20 (S.C. 2000); State v. Lamb, 649 S.E.2d 486 (S.C. 2007).
      • 17 and charged with a misdemeanor, a Class E or F felony, or a felony which would carry a maximum term of imprisonment of 10 years or less for an adult, after full investigation. § 63-19-1210(4).
      • 14, 15 or 16 and charged with an offense which would be a Class A,B,C, or D felony or a felony which provides for a maximum term of imprisonment of 15 years or more for an adult, after full investigation and a hearing. § 63-19-1210(5).
      • 14 or older and charged with carrying a weapon on school property, unlawful carrying of a handgun, or unlawful distribution of drugs within a half-mile of a school, after full investigation and a hearing.  § 63-19-1210(9).
    • A child under 14 is prohibited under § 16-3-659 from being transferred to general sessions court on a criminal sexual conduct charge.  Slocumb v. State, 522 S.E.2d 809 (S.C. 1999).
  • Determine if waiver is in the child's and public's best interest. § 63-19-1210(4),(5),(9); State v. Kelsey,502 S.E.2d 63 (S.C. 1998); State v. Pittman, 647 S.E.2d 144 (S.C. 2007).
  • Order must include "a sufficient statement of the reasons for, and considerations leading to" the decision to waive.  State v. Kelsey, 502 S.E.2d 63, 70-71 (S.C. 1998); See State v. Avery, 509 S.E.2d 476, 481 (S.C. 1998); See In re Sullivan, 265 S.E.2d 527, 529 (S.C. 1980).
    • "Conclusory statements, or a mere recitation of statutory requirements, without further explanation will not suffice. The order should be sufficient to demonstrate that the statutory requirement of full investigation has been met and that the question has received full and careful consideration by the family court. The salient facts upon which the order is based are to be set forth in the order." In re Sullivan, 265 S.E.2d 527, 529 (S.C. 1980).
    • See State v. Pittman, 647 S.E.2d 144, 161 (S.C. 2007) (affirming the family court's waiver order despite its lack of detail because the order sufficiently demonstrated that a full investigation occurred, and the record supported the family court's decision).
    • The appellate court will affirm a transfer order unless the family court has abused its discretion.  State v. Avery, 509 S.E.2d 476, 481 (S.C. 1998); State v. Miller, 611 S.E.2d 309, 312 (S.C. Ct. App. 2005); State v. Jones, 709 S.E.2d 696, 699 (S.C. Ct. App. 2011).
  • If the family court retains jurisdiction, the judge who presided over the waiver hearing should not preside over the adjudicatory hearing. Rule 34, SCRFC.
  • Waiver or transfer of certain charges against a child does not result in all pending charges being transferred.  If a charge is not transferred, it remains a family court charge and the child retains all of the protection of the juvenile system as to that charge. Johnson v. State, 437 S.E.2d 20 (S.C. 1993).
  • A family court order transferring jurisdiction over a child to a court of general sessions is interlocutory and not subject to immediate appeal. State v. Lockhart, 267 S.E.2d 720 (S.C. 1980).

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