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ScottyMacEsq
ScottyMacEsq, Lawyer
Category: Criminal Law
Satisfied Customers: 15743
Experience:  Licensed Texas General Practice Attorney
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If a person was charged in S. Carolina with a felony, but

Customer Question

If a person was charged in S. Carolina with a felony, but the charge was statute as a misdemeanor by a police officer, can this dismissed under technicality of rules and procedures? The charge was unlawful to begin with filled a false police report was given after a shooting victim was in hospital to hopefully minimize the shooters charges( shooters girlfriend)? If so, can you please site state and federal statutes that I may assist in defendant case. I'm having trouble finding any that may apply, but its been a long time since I've had to research law and I'm not well versed in using this tablet unfortunately. Thank you for your time and kindness. Gayle *****
Submitted: 3 months ago.
Category: Criminal Law
Expert:  ScottyMacEsq replied 3 months ago.

Thank you for using JustAnswer.

I'm sorry to hear about your situation. To be clear, when you say "but the charge was statute as a misdemeanor" you mean "but the charge was stated as a misdemeanor" (that is, the officer wrote on a citation or report that it was a misdemeanor)?

Expert:  ScottyMacEsq replied 3 months ago.

Are you there?

Customer: replied 3 months ago.
No, the opposite. My son was charged with a felony charge and it was suppose to be a misdemeanor charge. Please help... I used to be paralegal. I need statutes federal and s. Carolina. Can case be dismissed for a technicality
Expert:  ScottyMacEsq replied 3 months ago.

Can you explain a bit more? When you say he was charged, do you mean he was indicted by a grand jury? Or that it has merely been referred to the prosecutor by the police for the next step?

Expert:  ScottyMacEsq replied 3 months ago.

I tried to accept the phone call, but there was a payment failure. You should be contacted by the site soon to try to fix it...

Customer: replied 3 months ago.
He is incarcerated now in akin county for this wrong charge. This felony charge could hurt his future. And he is victim of 2 gsw and shooter's girlfriend gave a false police report. My thought was to minimize his attempted murder 2nd degree and a weapon charge. Please help, shooter threatened to kill my son if he ever saw him again. He is a LT. In a bad gang in Akin county S. Carolina...
Expert:  ScottyMacEsq replied 3 months ago.

You say that it's an unlawful charge. Now I understand that the shooter / shooters girlfriend may have lied to obtain the charge. An "unlawful" charge indicates some misconduct on the part of the police / prosecutor. Do you have that? And why should it have been charged as a misdemeanor? Please note that I only know what you tell me. I don't know anything about this case other than what I learn from you, so please don't assume that I do...

Customer: replied 3 months ago.
All I asked was is it a technicality for a police officer to charge someone with a felony, when the charge should have been a misdemeanor? Possibility to have case dismissed?
Expert:  ScottyMacEsq replied 3 months ago.

Generally no. If it was really a mistake, and it should have been charged as a misdemeanor, that's what's known as a "clerical error". Clerical errors are never the basis to get cases dismissed. Now you can use a clerical error to show some deficiency in perception on the part of the police officer (that they didn't understand what was going on, or that they weren't "all there" when they made the report, etc...). But charges occur based upon "elements" of a crime. For a felony, the charges are put into a charging document called an "indictment" and presented to the grand jury. The grand jury looks at all the elements and determines if there's a preponderance of the evidence on each element. If so, it "returns" the indictment that results in the prosecution moving forward. A clerical error would generally only result in them changing it from a felony to misdemeanor, not a dismissal. Again, the mistake could be used to discredit the police officer on the stand, sure, but clerical errors are not grounds for dismissal, unless the error itself goes to the "substantive jurisdiction" of the court (that is, if the error indicates that he should be in Federal court rather than in state court, and that when the error is fixed the state court would no longer have jurisdiction... that sort of thing...). The point is that if the error is fixed, and the court would still have jurisdiction, the case is not dismissed.

I know this is probably not what you wanted to hear, but it is the law. I hope that clears things up anyway. If you have any other questions, please let me know. If not, and you have not yet, please rate my answer AND press the "submit" button, if applicable. Please note that I don't get any credit for the time and effort that I spent on this answer unless and until you rate it positively (3 or more stars). Look for the stars on your screen (★★★★★). Thank you, ***** ***** luck to you!

Expert:  ScottyMacEsq replied 3 months ago.

Did you have any other questions before you rate this answer?

Expert:  ScottyMacEsq replied 3 months ago.

Are you there? Please note that I am still here, awaiting your response or rating... (please note that rating closes this question out, so if there's nothing else, please rate it so that I can assist other customers that are waiting for answers to their questions)

Expert:  ScottyMacEsq replied 3 months ago.

I see that you have not responded in some time. Please note that this question is still open until you rate it. I believe that I have answered your question, but if you have any other questions, please let me know. If not, and you have not yet, please rate my answer AND press the "submit" button, if applicable. Please note that I don't get any credit for the time and effort that I spent on this answer unless and until you rate it positively (3 or more stars). Look for the stars on your screen (★★★★★). Thank you, ***** ***** luck to you!

Expert:  ScottyMacEsq replied 3 months ago.

I see that you have not responded in some time. Please note that I don't get any credit for the time and effort that I spent on this answer unless and until you rate it positively (3 or more stars). Look for the stars on your screen (★★★★★). Thank you, ***** ***** luck to you!

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