Archives > 1976 South Carolina Code of Laws - Previous Versions > 2006 Session > Title 17

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Title 17 - Criminal Procedures

CHAPTER 3.

DEFENSE OF INDIGENTS

ARTICLE 1.

GENERAL PROVISIONS

SECTION 17-3-10. Persons entitled to counsel shall be so advised; when counsel shall be provided.

Any person entitled to counsel under the Constitution of the United States shall be so advised and if it is determined that the person is financially unable to retain counsel then counsel shall be provided upon order of the appropriate judge unless such person voluntarily and intelligently waives his right thereto. The fact that the accused may have previously engaged and partially paid private counsel at his own expense in connection with pending charges shall not preclude a finding that he is financially unable to retain counsel.

SECTION 17-3-20. Appointment of counsel for indigents charged with murder; compensation.

In the event any person who shall be charged with murder shall, after investigation by the court, be determined to be unable financially to retain adequate legal counsel, the court shall appoint such qualified and experienced counsel to defend such defendant in the trial of the action.

Such appointed counsel shall be paid such fee and costs as the court shall deem appropriate.

SECTION 17-3-30. Affidavit of inability to employ counsel; payment of indigent's assets to state; application fee; waiver or reduction of fee; disposition of fee revenues; fund for screening applicants.

(A) A person to whom counsel has been provided shall execute an affidavit that he is financially unable to employ counsel and that affidavit shall set forth all his assets. If it appears that the person has some assets but they are insufficient to employ private counsel, the court, in its discretion, may order the person to pay these assets to the defender corporation of the county or counties wherein he is being represented or, if a defender corporation does not exist therein, to the Office of Indigent Defense of the State of South Carolina.

(B) A twenty-five dollar application fee for public defender services must be collected from every person who executes an affidavit that he is financially unable to employ counsel. The person may apply to the clerk of court or other appropriate official for a waiver or reduction in the application fee. If the clerk or other appropriate official determines that the person is unable to pay the application fee, the fee may be waived or reduced, provided that if the fee is waived or reduced, the clerk or appropriate official shall report the amount waived or reduced to the trial judge upon sentencing and the trial judge shall order the remainder of the fee paid during probation if the person is granted probation. The clerk of court or other appropriate official shall collect the application fee imposed by this section and remit the proceeds to the state fund on a monthly basis. The monies must be deposited in an interest-bearing account separate from the general fund and used only to provide for indigent defense services. The monies shall be administered by the Office of Indigent Defense. The clerk of court or other appropriate official shall maintain a record of all persons applying for representation and the disposition of the application and shall provide this information to the Office of Indigent Defense on a monthly basis as well as reporting the amount of funds collected or waived.

(C) Sufficient funds shall be set aside from allocations provided for the defense of indigent to provide for adequate screening of applications for indigent assistance to ensure the applicant is qualified.

SECTION 17-3-40. Creation of claim against assets and estate of person for whom counsel is provided.

(a) The appointment of counsel, as hereinbefore provided, creates a claim against the assets and estate of the person who is provided counsel in an amount equal to the costs of representation as determined pursuant to Sections 17-3-50 and 17-3-80, less that amount that the person pays to the defender corporation of the county or counties wherein he is being represented or the judicial department as provided for in Section 17-3-30.

(b) Such claim shall be filed in the office of the clerk of court in the county where the person is assigned counsel, but the filing of a claim shall not constitute a lien against real or personal property of the person unless, in the discretion of the court, part or all of such claim is reduced to judgment by appropriate order of the court, after serving the person with at least thirty days' notice that judgment will be entered. When a claim is reduced to judgment, it shall have the same effect as judgments, except as modified by this chapter.

(c) The court may, in its discretion, order any claim or judgment waived, modified or withdrawn.

(d) The Judicial Department shall be responsible for administering this section, and all moneys collected hereunder shall be paid over to the Judicial Department.

SECTION 17-3-50. Determination of fees for appointed counsel and public defenders; maximum amounts; authorization to exceed maximum; payment for certain services.

(A) When private counsel is appointed pursuant to this chapter and in accordance with a plan of appointment promulgated by the bar of each county, he shall be paid a reasonable fee to be determined on the basis of forty dollars an hour for time spent out of court and sixty dollars an hour for time spent in court. The same hourly rates shall apply in post-conviction proceedings. Compensation shall not exceed three thousand five hundred dollars in a case in which one or more felonies is charged and one thousand dollars in a case in which only misdemeanors are charged. Compensation shall be paid from funds available to the Office of Indigent Defense for the defense of indigents represented by court-appointed, private counsel. The same basis shall be employed to determine the value of services provided by the office of the public defender for purposes of Section 17-3-40 hereof.

(B) Upon a finding in ex parte proceedings that investigative, expert, or other services are reasonably necessary for the representation of the defendant, the court shall authorize the defendant's attorney to obtain such services on behalf of the defendant and shall order the payment, from funds available to the Office of Indigent Defense, of fees and expenses not to exceed five hundred dollars as the court considers appropriate.

(C) Payment in excess of the hourly rates and limits in subsection (A) or (B) is authorized only if the court certifies, in a written order with specific findings of fact, that payment in excess of the rates is necessary to provide compensation adequate to ensure effective assistance of counsel and payment in excess of the limit is appropriate because the services provided were reasonably and necessarily incurred.

(D) Nothing in this section shall be construed to alter the provisions of Section 17-3-10 concerning those defendants who are entitled to legal representation.

SECTION 17-3-60. Procedures for establishing public defender systems in counties.

If a majority of the attorneys of any county admitted to practice before the Supreme Court of this State, whose principal office is located in the county, elect to establish a public defender system in such county they shall do so in accordance with the following:

(a) The bar of the county shall create an eleemosynary corporation to be known as the Defender Corporation of ____________________ County.

(b) The board of directors shall be composed of at least three but not more than ten attorneys of the county, to be elected or appointed by the bar of the county and the board shall exercise all the ordinary and usual functions including the selection and dismissal of personnel.

(c) The county shall have one or more public defenders and as many assistant defenders as deemed necessary by the directors, not to exceed the number of assistant solicitors of the circuit in which the county is located.

(d) The public defender and assistant public defenders shall be licensed to practice law in this State. The public defender or the assistant public defenders may reside outside of the county in which they serve.

(e) The public defender and assistant public defenders shall give priority to their duties under the provisions of this chapter, and may engage in the private practice of law only if permitted to do so by the board herein named and only to the extent that it will not interfere with, or prevent performance of, their duties as public defenders or assistant defenders; provided, public defenders and assistant public defenders shall not represent persons charged with a criminal offense under the laws of this State in their private practice of law.

(f) Each public defender shall receive as compensation an amount not to exceed that received by the solicitor of the judicial circuit in which he is located. Provided, however, that in counties where the public defender is full time and without private practice and the circuit solicitor serving that county engages in private practice, the compensation of the public defender shall not exceed the salary provided by law for a full-time circuit solicitor. Assistant public defenders shall receive as compensation amounts not to exceed the compensation received by assistant solicitors serving the county in which the assistant defender is located. No additional state funds shall be used to provide for such compensation of public defenders and assistant public defenders above the appropriations authorized by Sections 17-3-70 and 17-3-80.

(g) The board may employ such other part-time or full-time personnel as practicable and necessary for the efficient discharge of duties under this chapter.

(h) The corporation established hereunder is authorized to receive funds from any legitimate source in furtherance of the aims of this chapter.

(i) Nothing herein contained is designed to prevent the combined bars of two or more adjoining counties from jointly creating a defender corporation to be known as the Defender Corporation of ____________________ and ____________________ counties. For the purposes of this subsection the public defender or the assistant public defenders may reside outside of the defender corporation area.

SECTION 17-3-70. Appropriation for maintenance of defender corporations and compensation of appointed private counsel.

For the fiscal year commencing July 1, 1969, there is hereby appropriated from the general fund of the State, on behalf of each county, a sum equal to one hundred and fifty dollars for each one thousand persons residing in the county according to the most recent official United States census. This sum is to be maintained by the Judicial Department and disbursed as follows:

(a) Upon receipt of an application for funds from a defender corporation, and upon finding that the defender corporation has satisfied the requirements of this chapter, the Judicial Department shall disburse to the defender corporation such funds as are necessary for the month-to-month operation of the corporation, but in no event to exceed the total appropriated hereunder; and

(b) Upon receipt of written application from an appointed private counsel payment shall be made to him in the amount approved by the trial judge, provided that no such payment shall be made after the funds appropriated for that county or counties in the defender corporation area have been exhausted.

SECTION 17-3-80. Appropriation for expenses of appointed private counsel and public defenders; restrictions and limitations.

In addition to the appropriation in Section 17-3-70, there is appropriated for the fiscal year commencing July 1, 1969, the sum of fifty thousand dollars for the establishment of the defense fund which must be administered by the Office of Indigent Defense. This fund must be used to reimburse private-appointed counsel, public defenders, and assistant public defenders for necessary expenses, not to exceed two thousand dollars for each case, actually incurred in the representation of persons pursuant to this chapter, so long as the expenses are approved by the trial judge. No reimbursement may be made for travel expenses except extraordinary travel expenses approved by the trial judge. The total state funds provided by this section may not exceed fifty thousand dollars.

SECTION 17-3-85. Fiscal year-end disposition of unexpended appropriations for payment of private appointed counsel for counties without public defender corporations.

At the end of each fiscal year all funds appropriated for counties without public defender corporations which have not been exhausted shall be combined into one fund and any and all claims of private appointed counsel in other counties remaining unpaid by virtue of the exhaustion of appropriated funds in those respective counties shall be paid on a pro rata basis until such fund is exhausted or until all claims are satisfied. After payment of the above, any funds remaining at the end of a fiscal year maintained by the Judicial Department shall revert to the general fund of the State at the end of that fiscal year.

SECTION 17-3-90. Vouchers shall be submitted by appointed private counsel and public defenders; payment shall be made upon approval.

Private, appointed counsel shall submit a voucher to the clerk of court of the county of appointment setting forth all details of the appointment for purposes of remuneration under Section 17-3-50 and reimbursement of expenses under Section 17-3-80, and the public defender shall do likewise under Section 17-3-80. It shall be the duty of the clerk of court to present the voucher to the trial judge for approval and to transmit the same to the Judicial Department who shall make payment to the appropriate party.

SECTION 17-3-100. Discretionary authority of judge to appoint counsel is not limited; remuneration and reimbursement.

Nothing herein contained is designed to limit the discretionary authority of a judge to appoint counsel in any case and any such counsel shall be entitled to remuneration and reimbursement as provided in Sections 17-3-50 and 17-3-80 hereof, so long as funds appropriated herein are available therefor.

SECTION 17-3-110. Power of Supreme Court to establish rules and regulations.

The Supreme Court of South Carolina is hereby empowered to establish such rules and regulations as are necessary for the proper administration of this chapter.

ARTICLE 3.

COMMISSION ON INDIGENT DEFENSE

SECTION 17-3-300. Definitions.

As used in this article:

(1) "Commission" means the Commission on Indigent Defense;

(2) "Division of Appellate Defense" includes all attorneys and employees in the division.

SECTION 17-3-310. Commission created; appointment of members; terms; powers and duties.

(A) There is created the Commission on Indigent Defense consisting of fifteen members.

(B) Eleven members shall be appointed by the Governor as follows:

(1) One member from each congressional district appointed upon recommendation of the South Carolina Public Defender Association and one member from the State at-large appointed upon the recommendation of the South Carolina Public Defender Association who shall serve as chairman.

Members shall serve for terms of four years and until their successors are appointed and qualify. Vacancies must be filled in the manner of original appointment for the unexpired portion of the term. A person may not be appointed to the commission pursuant to the provisions of this item or, once appointed pursuant to the provisions of this item, may not continue to serve on the commission unless the person is a public defender.

(2) A member of the South Carolina Bar appointed upon recommendation by the President of the South Carolina Bar for the term for which he is elected.

(3) A member of the South Carolina Trial Lawyers Association appointed upon recommendation by the President of the South Carolina Trial Lawyers Association for the term for which he is elected.

(4) A member of the South Carolina Criminal Defense Lawyers Association appointed upon the recommendation of the President of the South Carolina Criminal Defense Lawyers Association for the term for which he is elected.

(5) A member of the South Carolina Public Defender Association appointed upon recommendation of the President of the South Carolina Public Defender Association for the term for which he is elected.

(C) The remaining four members must be appointed as follows:

(1) two members appointed by the Chief Justice of the South Carolina Supreme Court, one of whom must be a retired circuit court judge and one of whom must be either a retired family court judge or a retired appellate court judge, each of whom shall serve for a term of four years and until a successor is appointed and qualifies; and

(2) the Chairmen of the Senate and House Judiciary Committees, or their legislative designees, for the terms for which they are elected.

(D) Members currently serving as of July 1, 2005, shall continue to serve until the expiration of their term and may be reappointed as provided in subsection (B)(1).

(E) The commission may adopt an appropriate seal and promulgate regulations consistent with the provisions of this article to govern its operations and procedures and shall supervise the operations of the Office of Indigent Defense including all the divisions of the office.

(F) The commission:

(1) may establish divisions within the office to administer the services and programs as it considers necessary to fulfill the purposes of this article;

(2) shall develop rules, policies, procedures, regulations, and standards as it considers necessary to carry out the provisions of the article and comply with state law or regulations and the rules of the Supreme Court, including the nature and scope of services to be provided, the clientele to be served, and the establishment of criteria to be used in the determination of indigency and qualifications for services for indigent legal representation; and

(3) shall cooperate and consult with state agencies, professional associations, and other groups concerning the causes of criminal conduct, the rehabilitation and correction of persons charged with and convicted of crimes, the administration of criminal justice, and the improvement and expansion of defender services.

SECTION 17-3-320. Office of Indigent Defense; executive director; appointment; duties.

(A) There is created the Office of Indigent Defense under the jurisdiction of the commission. The office must be administered by an executive director appointed by the commission. The executive director may hire other administrative, clerical, and legal staff and is authorized to contract with outside consultants on behalf of the office as he considers necessary to provide the services as required pursuant to the provisions of this article.

(B) The executive director shall:

(1) administer and coordinate the operations of the office and all divisions within the office and supervise compliance with rules, procedures, regulations, and standards adopted by the commission;

(2) maintain proper records of all financial transactions related to the operation of the office;

(3) coordinate the services of the office with any federal, county, private, or other programs established to provide assistance to indigent persons entitled to representation pursuant to the provisions of this chapter and consult with professional organizations concerning the implementation and improvement of programs for providing indigent services; and

(4) perform other duties as the commission assigns.

SECTION 17-3-330. Duties of Office of Indigent Defense.

(A) The Office of Indigent Defense shall:

(1) serve as the entity which distributes all funds appropriated by the General Assembly for the defense of indigents, including funds allocated to counties' public defender offices pursuant to formula, funds for the defense of capital cases, funds for attorney fees and expenses in noncapital cases, and other funds appropriated for these purposes;

(2) perform those functions provided pursuant to Section 17-3-340;

(3) perform those functions provided pursuant to Section 16-3-26(G);

(4) serve as a resource for the compilation of accurate statistical data covering the indigent defense system in this State;

(5) implement other duties the commission may direct; and

(6) report annually to the General Assembly on the indigent defense system.

(B) On or about June 30, 1994 and every year thereafter on that date, if the Office of Indigent Defense determines, after taking into consideration all outstanding obligations against the fund for payment of attorney fees and expenses in noncapital cases, that unexpended funds remain, these funds shall be rolled over into the fund for payment of attorney fees and expenses in capital cases; provided, however, this shall occur only in the event the funds in the capital fund have been exhausted at that time. This fund shall at no time exceed $2,750,000.

(C) Notwithstanding another provision of law, only attorneys who are licensed to practice in this State and residents of this State may be appointed by the court and compensated with funds appropriated to the Death Penalty Trial Fund in the Office of Indigent Defense.

SECTION 17-3-340. Division of Appellate Defense created; administration and staffing; duties and responsibilities.

(A) There is created within the Office of Indigent Defense, the Division of Appellate Defense. All of the allied, advisory, affiliated, or related entities as well as the employees, funds, property, and all contractual rights and obligations associated with the commission and Office of Appellate Defense formerly provided in Chapter 4, Title 17 are transferred to and incorporated in and must be administered as part of the Office of Indigent Defense.

(B) The division must be administered by a chief attorney. The staff of the division shall consist of additional attorneys and administrative, investigative, secretarial, and clerical employees necessary to discharge the duties of the division. No person may be hired to serve as an attorney who is not licensed to practice law in this State. Attorneys employed by the division shall devote full time to their duties and may not engage in the private practice of law.

(C) The division shall carry out the following duties and responsibilities:

(1) It shall represent any person who the office determines, subject to court review, falls within the guidelines promulgated pursuant to Section 17-3-310(F)(2) who files Notice of Intention to Appeal or desires to appeal a conviction in any trial court, or decision of any proceeding in civil commitment or other voluntary placement in a state, county, or municipal facility. Any person desiring representation by the division shall request a determination of his indigency status in writing from the Supreme Court, the court of appeals, the circuit or family court, or the division. Any court receiving a request for indigent appellate representation shall forward the request to the office who, within ten days of the receipt of the request for representation, shall notify the person requesting representation and the court in which the appeal will be effected of its decision.

(2) Upon a finding that a person requesting representation qualifies as an indigent and after being appointed as counsel for such person by the court in which the appeal will be effected, the division shall represent such person in his appeal of a conviction in any trial court, or decision of any proceeding in civil commitment or other involuntary placement in a state, county, or municipal facility, provided nothing in this article requires the division to pursue any appeal unless the chief attorney of the division is first satisfied that there is arguable merit to the appeal.

(3) It shall represent indigents, other than at trial or commitment proceedings when appointed by the court.

(4) It shall represent indigents in appeals of convictions in trial courts of this State, or decisions of civil commitment proceedings or other involuntary placement only in courts of this State.

SECTION 17-3-350. Appointment of counsel by court.

The provisions of this article shall not restrict any court in which an appeal is to be effected, from appointing counsel for indigent persons when the division is disqualified from representation for reasons of conflict or when the division deems it advisable that it not provide representation for the indigent person.

SECTION 17-3-360. Funding.

The commission will be funded by appropriations to the commission in the State General Appropriations Act including such federal funds as may be available.