Embezzlement & Breach of Trust in South Carolina (2024)

What is embezzlement in South Carolina, and how is it different from charges for breach of trust with fraudulent intent?

Each is a specific charge, with specific elements that the state must prove to get a conviction, and they might not mean what you think. Below, we will go over the basics of South Carolina law on embezzlement and breach of trust, including:

  • The definition of breach of trust with fraudulent intent,
  • The definition of embezzlement in South Carolina, and
  • The difference between the two charges.

Embezzlement vs. Breach of Trust

What most people think of as “embezzlement” is charged as breach of trust with fraudulent intent in South Carolina – for example, when an employee or corporate officer takes money that was entrusted to them as part of their job and converts it to their own use.

There is no embezzlement offense in the state of South Carolina – embezzlement is called breach of trust in our state, but there is a separate criminal offense for “embezzlement of public funds.”

Breach of Trust with Fraudulent Intent in South Carolina

Breach of trust with fraudulent intent is defined in South Carolina Code § 16-13-230 and South Carolina appellate opinions.

To get a conviction for breach of trust, the State must prove beyond a reasonable doubt:

  1. That the defendant and alleged victim had a fiduciary, or trust, relationship – the defendant was holding money or property “in trust” for the alleged victim,
  2. That the defendant converted money or property to his or her own use, and
  3. That the defendant had fraudulent intent when the money or property was taken – if the defendant made an honest mistake or took the money or property in good faith, they are not guilty of breach of trust with fraudulent intent.

For example, a roofer who contracts to do a job, receives payment in advance to buy materials for the job, and then disappears with the money with no intention of completing the job, they could be charged with breach of trust with fraudulent intent.

On the other hand, a roofer who contracts to do a job, receives payment in advance to buy materials for the job, and then takes longer than expected to return and complete the job is not guilty of breach of trust. Similarly, a roofer who does a shoddy job and the homeowner does not feel like they got the benefit of their bargain is not guilty of breach of trust.

Employees are often charged with breach of trust when they are accused of taking money from a store’s cash register or when a corporate employee is accused of diverting corporate funds to their own use.

Wait, this sounds like embezzlement, you say?

It does – but we don’t call it embezzlement in South Carolina. The criminal offense that applies when an employee takes money that was entrusted to them in South Carolina is breach of trust with fraudulent intent, not embezzlement.

The Problem with Breach of Trust Charges in South Carolina

Breach of trust charges are too often abused in South Carolina courts when people (and police or prosecutors) will use the charge to attempt to “shakedown” someone who owes them money. For a breach of trust charge to be valid, there must be probable cause for each of the elements of breach of trust – including the fraudulent intent.

For example, if Mr. Jones contracts with Ms. Robinson to design and install cabinets in Mr. Jones’ house, Ms. Robinson begins the work, but Mr. Jones is not satisfied with the product or there is an unanticipated delay, that is not breach of trust, or any crime at all.

The remedy for a contractor’s failure to perform as expected under a contract is a lawsuit for breach of contract, not criminal charges for breach of trust.

How do wrongful charges for breach of trust happen?

Mr. Jones may call his civil attorney and ask, how do we get reimbursed for this work that wasn’t done? The attorney might say 1) we could sue them, but the lawsuit could take years and they won’t pay even if you get a judgment, or 2) you could have them arrested for breach of trust and the court will force them to pay you restitution.

If the police follow through with this unlawful arrest, Ms. Robinson might, once the charges are dismissed, have a lawsuit against Mr. Jones and the police department for wrongful arrest and violation of her civil rights.

The lesson?

  1. – If you are charged with breach of trust in South Carolina, or if you are being threatened with arrest, get an experienced criminal defense lawyer on your case immediately, and
  2. – If you are angry because a contractor did not live up to their side of the bargain, your remedy is to file a lawsuit in civil court – it’s a civil matter, not criminal.

Potential Penalties for Breach of Trust with Fraudulent Intent

The penalties if you are convicted of breach of trust in South Carolina are “graduated” based on the dollar value of the property taken, and will usually include restitution for any funds or property that was stolen:

Value of PropertyMisdemeanor or FelonyCourtFineJail Time
$2000 or lessMisdemeanorMagistrate or municipal courtIn the court’s discretionUp to 30 days
More than $2000 but less than $10,000FelonyGeneral SessionsIn the court’s discretionUp to five years
$10,000 or moreFelonyGeneral SessionsIn the court’s discretionUp to ten years

What is Embezzlement in South Carolina?

Embezzlement only applies to the alleged theft of public funds. South Carolina Code § 16-13-210 defines the South Carolina offense of “embezzlement of public funds,” and it only applies to “an officer or other person charged with the safekeeping, transfer, and disbursement of public funds.”

Note that under South Carolina Code § 16-13-220 the State does not have to prove how the funds were misappropriated or where they went – if the State proves that the officer or public official 1) received the funds and 2) failed to account for the funds as required by law, the jury can infer that the funds were embezzled – it is a rebuttable inference, meaning that the defendant can then explain what happened to the funds.

If you are an officer or public official who has been charged with embezzlement of public funds, or if you believe you are being investigated for embezzlement of public funds, it is critical that you get legal advice from an experienced white collar criminal defense lawyer immediately – before you talk to investigators or make any statements about the allegations.

Potential Penalties for Embezzlement of Public Funds in South Carolina

In addition to the potential for fines and jail time, a conviction for embezzlement of public funds will result in disqualification “from holding any office or emolument in this State,” although the legislature could remove this consequence by a 2/3 vote once the funds have been repaid.

The potential fines and jail time, based on the dollar value of the funds embezzled, are shown in the chart below:

Value of PropertyMisdemeanor or FelonyCourtFineJail Time
Less than $10,000FelonyGeneral SessionsIn the court’s discretionUp to five years
$10,000 or moreFelonyGeneral SessionsIn the court’s discretionUp to ten years

Questions About Embezzlement and Breach of Trust Charges in South Carolina?

If you have been charged with or if you believe you are under investigation for embezzlement of public funds or breach of trust in South Carolina, get experienced and capable representation immediately – before you make any statements or talk to the police.

The criminal defense lawyers at Seaton Law firm will investigate the allegations, answer your questions, and do everything legally and ethically possible to get your case dismissed, win your case at trial, or find a resolution that is fair and reasonable.

Call 843-761-3840 or use this form to contact us today to discuss your case and start working towards the best possible outcome for you.

Given the article's content, it's evident that the concepts of "embezzlement" and "breach of trust with fraudulent intent" in South Carolina have specific definitions and legal implications. Let me provide a comprehensive overview of these concepts:

Embezzlement vs. Breach of Trust in South Carolina

1. Embezzlement:

  • Definition: In South Carolina, "embezzlement" specifically pertains to the alleged theft of public funds. As per South Carolina Code § 16-13-210, it concerns "an officer or other person charged with the safekeeping, transfer, and disbursement of public funds."

  • Elements for Conviction: The state doesn't necessarily need to prove how the funds were misappropriated or where they went. Instead, if the state can establish that:

    1. The officer or public official received the funds, and
    2. Failed to account for the funds as required by law,

    then it can be inferred that the funds were embezzled. However, this inference can be rebutted by the defendant providing an explanation regarding the funds' whereabouts.

  • Penalties: Conviction can lead to disqualification from holding any office or emolument in the state. The potential fines and jail time vary based on the dollar value of the embezzled funds, with a maximum penalty of up to ten years in prison for amounts of $10,000 or more.

2. Breach of Trust with Fraudulent Intent:

  • Definition: This pertains to situations where there's a breach of trust due to fraudulent intent. It doesn't specifically involve public funds but can relate to any situation where there's a fiduciary or trust relationship, like an employee-employer relationship.

  • Elements for Conviction: For a conviction, the state must prove:

    1. A fiduciary or trust relationship between the defendant and the alleged victim.
    2. The defendant converted money or property for their own use.
    3. The defendant acted with fraudulent intent. If the defendant's actions were an honest mistake or done in good faith, they aren't guilty of this charge.
  • Examples: The article gives instances like a roofer disappearing with advance payment without completing the job or an employee taking money from a store's cash register.

  • Penalties: Penalties are graduated based on the dollar value of the property taken. The penalties range from up to 30 days in jail for amounts up to $2,000 to up to ten years in prison for amounts exceeding $10,000.

Conclusion:

While colloquially, "embezzlement" might be used to describe any fraudulent misappropriation of funds, in South Carolina, it's a specific charge related to public funds. On the other hand, "breach of trust with fraudulent intent" covers a broader range of situations involving fraudulent actions within trust relationships, such as employee theft or contractor fraud. Understanding these distinctions is crucial, especially for those facing potential charges or involved in legal proceedings in South Carolina.

Embezzlement & Breach of Trust in South Carolina (2024)
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