Case Details


Attorney General's Power To Prosecute May Not Be Limited By Legislature

Filing State



South Carolina Court of Appeals




State v. Peake, 345 S.C. 72; 545 S.E.2d 840 (S.C. App. 2001), aff’d 353 S.C. 499 (S.C. 2003)


Attorney General has constitutional power to supervise prosecution of criminal cases, and legislature cannot limit that power. State agency did not have authority to bind state as to criminal enforcement.

Case Description

To resolve charges that he had violated state environmental regulations, John Peake entered into an agreement with the state Department of Health and Environmental Control (DHEC) under which he gave up title to a water treatment facility. After the agreement was reached, the matter was referred by the DHEC employee to the Attorney General. Peake was subsequently indicted by a state grand jury for violating the Pollution Control Act. The circuit court dismissed the indictment, concluding DHEC had entered into a binding agreement on behalf of the State to forego criminal prosecution of Peake in exchange for payment of a civil sanction. The State appealed, asserting, among other things, that DHEC did not have legal authority to bind the State to an agreement limiting criminal prosecution. The Court of Appeals held that enforcement of an agreement not to prosecute is subject to two conditions: (1) the agent must be authorized to make the promise; and (2) the defendant must rely to his detriment on the promise. The court of appeals found “the South Carolina Supreme Court has held that the power constitutionally granted to the Attorney General to supervise the prosecution of criminal cases includes the power to decide which cases to prosecute. . . . [T]he decision to prosecute is constitutionally granted to the Attorney General and cannot be impaired by the Legislature.” Therefore, the DHEC employee was not authorized to make any promises with respect to criminal charges.