In Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979), the U.S. Supreme Court considered the right of a criminal defendant to be represented by counsel as provided by the Sixth Amendment of the U.S. Constitution.
Petitioner Scott was convicted of theft, in violation of an Illinois statute which provided for a fine of up to $500 or imprisonment, not to exceed one year, or both. Scott was not represented by counsel, and upon conviction, he was fined $50. Scott's appeal was based on his contention that the State must provide counsel whenever imprisonment is an authorized penalty under the applicable statute. The Supreme Court held that Scott's Sixth Amendment right to counsel had not been violated.

The Court held that the U.S. Constitution "require(s) only that no indigent criminal defendant be sentenced to a term of imprisonment unless the State has afforded him the right to assistance of appointed counsel in his defense." Therefore, even though a prison sentence is statutorily provided for a particular offense, an uncounselled misdemeanor conviction is constitutionally valid if the offender is not actually incarcerated. Additionally, the S.C. Supreme Court held in State v. Chance, 304 S.C. 406, 405 S.E.2d 375 (1991) cert. denied ___ U.S., 112 S.Ct. 1241, 117 L.Ed.2d 474 (1992) that when a defendant is not actually incarcerated on a prior uncounselled conviction, that offense may be used for enhancement purposes.

Scott has no effect on the Defense of Indigents Act. An initial determination must be made by the judge that 1) he will not impose a prison sentence, and therefore the defendant need not be provided counsel, or 2) a prison sentence might be appropriate, in which case, counsel must be appointed to represent the indigent defendant, unless he knowingly and intelligently waives that right.

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