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:
- 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,
- That the defendant converted money or property to his or her own use, and
- 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?
- – 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
- – 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 Property | Misdemeanor or Felony | Court | Fine | Jail Time |
| $2000 or less | Misdemeanor | Magistrate or municipal court | In the court’s discretion | Up to 30 days |
| More than $2000 but less than $10,000 | Felony | General Sessions | In the court’s discretion | Up to five years |
| $10,000 or more | Felony | General Sessions | In the court’s discretion | Up 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 Property | Misdemeanor or Felony | Court | Fine | Jail Time |
| Less than $10,000 | Felony | General Sessions | In the court’s discretion | Up to five years |
| $10,000 or more | Felony | General Sessions | In the court’s discretion | Up 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.
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