South Carolina Legislature MobileReference is to Printer's Date 03/03/11.
Amend the bill, as and if amended, by adding an appropriately numbered SECTION to read:
/ SECTION __.A. Title 14 of the 1976 Code is amended by adding:
Section 14-29-10. This section may be cited as the 'Middle Court Processes Act'.
Section 14-29-20. The General Assembly recognizes that the drug court process existing in various counties has been successful in rehabilitating nonviolent drug and drug-related offenders who otherwise likely would be sentenced to prison. The purpose of this chapter is to incorporate, build upon, and expand the successes and scope of the drug court concept by establishing a statewide middle court process that is not limited to drug offenses and shall promote the rehabilitation and reentry of certain nonviolent offenders into society and reserve the state's prisons for those dangerous offenders and others for whom prison is the best alternative in the criminal justice system. This chapter intends to set standards and procedures to facilitate the creation and continuation of these programs across the State, while leaving local jurisdictions the flexibility to tailor individual programs to local needs.
Section 14-29-30. Each judicial circuit shall establish a middle court process, subject to the availability of funds. Each circuit which receives state funding for the implementation of a middle court program shall establish and administer at least one middle court program for the circuit within one hundred eighty days of the effective date of this act. The Attorney General shall establish a middle court program in each circuit. The Department of Probation, Parole and Pardon Services shall administer the program and ensure that all eligible persons are permitted to apply for admission to the program.
Section 14-29-40. (A)
The Supreme Court shall appoint judges of
the middle court upon the recommendation of the Chief
Administrative Judge for that judicial circuit.
(B) A middle court
judge must:
(1)
be a member in good standing with the South Carolina Bar
or a member, active or retired, of the Unified Judicial
System;
(2)
serve at the pleasure of the Supreme Court for a term of
two years and may be reappointed;
(3)
receive no salary for his service as a middle court judge
and must serve as a middle court judge on a voluntary basis;
(4)
receive an allowance for mileage, subsistence, and per
diem when engaged in the exercise of his duties as a middle
court judge, to be paid from an approved account established for
this purpose by his appointing authority;
(5)
be exempt during his term from Rule 608, South Carolina
Appellate Court Rules, relating to the appointment of lawyers
for indigents;
(6)
enjoy in a middle court proceeding or action the same
privileges, immunities, and protections from civil liability as
a circuit court judge;
(7)
receive training provided for this service; and
(8)
reside in the judicial circuit where he serves.
(C) A middle court
judge shall preside subject to the Code of Judicial Conduct and
with the goal of instilling discipline in participants to a
middle court proceeding, promoting the participant's
rehabilitation, and encouraging the participant's successful
completion of the middle court process. A middle court judge
has the authority of a circuit court judge acting in probation
matters, including, among other things, the authority to:
(1)
maintain order and decorum in all proceedings, including
use of the contempt power;
(2)
issue an order of acceptance of a participant in the
process and an order of dismissal from the process;
(3)
impose by written order a sanction dismissing a
participant from the middle court process or incarcerating him
for no more than seven days for failing to meet a condition,
requirement, or goal ordered by the middle court;
(4)
issue to a participant a certificate indicating his
successful completion of the middle court process;
(5)
order conditions or requirements of a rehabilitation plan
for a participant, developed after consultation with the circuit
solicitor, a drug counselor, and other professionals and people
the middle court judge considers beneficial, with the conditions
and requirements to include school, education, vocational
training, work, drug testing, counseling, reporting, treatment,
curfew, monitoring, restitution, community service, batterer's
treatment, anger management, personal hygiene, meetings, and
other measures the judge considers appropriate and orders;
and
(6)
take action he considers necessary to carry out the middle
court's functions provided in this chapter.
Section 14-29-50. (A)
A person seeking admission to the middle
court process:
(1)
must execute a middle court agreement specified in this
chapter;
(2)
must receive approval of a circuit court judge of
competent jurisdiction;
(3)
previously may not have been admitted to a middle court
procedure;
(4)
may have no prior conviction or current conviction
for:
(a)
a violent crime as defined in Section 16-1-60;
(b)
an offense for which the offender was placed on the sex
offender registry pursuant to Section 23-3-430;
(c)
the offense of lynching in the first degree pursuant to
Section 16-3-210 or lynching in the second degree pursuant to
Section 16-3-220;
(d)
the common law offense of assault and battery of a high
and aggravated nature;
(e)
the offense of carjacking pursuant to Section
16-3-1075;
(f)
the offense of harassment or stalking pursuant to Article
17, Chapter 3, Title 16;
(g)
the offense of causing great bodily injury or death by
operating a vehicle while under the influence of drugs or
alcohol pursuant to Section 56-5-2945; or
(h)
a criminal domestic violence offense pursuant to Chapter
25, Title 16; and
(5)
must have an active sentence exceeding ninety days in
general sessions court for a nonviolent crime not exempted
pursuant to item (4), except a middle court judge may allow a
person convicted of burglary in the second degree, attempted
burglary in the second degree, or accessory before the fact of
burglary in the second degree to enter the process if the
circumstances of the offense did not involve an act of actual
violence to another person.
(B) A middle court
agreement required in subsection (A) may serve as the offender's
application for admission to a middle court process and
jurisdiction, and shall include:
(1)
an acknowledgement by the offender that his application is
voluntary and freely entered into;
(2)
an agreement that, if accepted, he will comply with all
conditions, rules and requirements imposed upon him in the
middle court process, including a rehabilitation plan;
(3)
an acknowledgement that, if accepted, he may be dismissed
from the process at the discretion of the middle court judge and
consequently transferred to the circuit court for commencement
of his entire original sentence, without reduction;
(4)
an acknowledgement and agreement that he has no right to
appeal or enjoin a decision of the middle court judge;
(5)
an acknowledgement and agreement that the post-conviction
relief procedures do not apply to the middle court process, and
a relinquishment of all rights to post-conviction relief;
(6)
an agreement to cooperate fully with a person involved in
his rehabilitation plan and to comply with the requirements and
conditions of the plan, including the submission to analysis,
testing, treatment, counseling, evaluation, and providing of
complete personal, health, and family information, and executing
releases to accomplish the provision of this information;
(7)
an acknowledgement and agreement that information and test
results produced by the middle court process become and remain
the property of law enforcement and may be used against him.
However, the information and test results may not be used as the
sole or independent basis of a criminal prosecution of the
offender for actions preceding his acceptance into the middle
court process;
(8)
an agreement to bear, subject to his ability to pay, the
costs of analysis, testing, treatment, counseling, or evaluation
in a rehabilitation plan prescribed in the process, and an
agreement that funds paid by the participant or on his behalf
during the course of the middle court process may not be
refundable in any event, including his dismissal from the
process;
(9)
a general explanation of the purpose and concept of the
middle court process;
(10)
a statement of the offender's knowing, willing, and full
consent and submission to the authority of the middle court and
its process;
(11)
the signature of the offender and, if any, his counsel;
and
(12)
other statements, acknowledgements, or agreements the
circuit solicitor may consider appropriate.
(C) In determining
whether to accept an offender for admission to the middle court
process, the middle court judge shall consider, among other
things:
(1)
the middle court agreement presented by the offender;
(2)
the nature of the offense for which the offender was
convicted in circuit court;
(3)
the offender's prior criminal history;
(4)
the offender's prior substance abuse history;
(5)
the likelihood that the offender successfully will
complete the process;
(6)
the risk and danger posed to the community by the
offender's remaining at large;
(7)
the benefits likely resulting to the community and this
State from the offender's acceptance into the process, including
cost savings, public service or private employment, enhancement
of the offender's ability to pay restitution, support or comfort
of his family, and the decreased likelihood of future criminal
activity;
(8)
the benefits likely resulting to the offender upon his
being accepted into the process, including drug rehabilitation,
education, training, family support, discipline, employment,
physical and mental health, and the opportunity for a productive
life;
(9)
a positive recommendation or statement from the victim,
the victim's family, law enforcement, or the community, the
recommendation after screening by a qualified person selected by
the solicitor or provided by a state, county, or municipal
agency to determine the mental health or drug dependence of the
applicant and his likelihood of successful completion of a
rehabilitation plan prescribed in this process;
(10)
any recommendation or statement requested by the middle
court judge from a solicitor, probation or parole official, or
prison official;
(11)
the risk and danger posed to the victim or victim's family
by the offender remaining at large; and
(12)
other circumstances or matters the middle court judge may
consider appropriate.
(D) The middle court's
acceptance of the offender as a participant must be presented to
the circuit court. The circuit court, in its discretion, may
order the transfer of the offender to the custody and
jurisdiction of the middle court for commencement of the middle
court process. The circuit court shall provide in its order
that the participant must be returned to the circuit court for
final disposition, as provided in this chapter, upon his
successful completion of the process or his dismissal from the
process.
(E) Notice must be
provided to all victims pursuant to the Victims' Bill of Rights.
Section 14-29-60. (A)
When establishing a middle court process,
the Attorney General:
(1)
may address the particular requirements and circumstances
of each circuit. The procedure is subject to and consistent
with the uniform procedures provided in this chapter,
including:
(a)
a middle court process must be at least twelve months in
duration but no more than eighteen months in duration for a
participant, although the process may be extended for a maximum
of six additional months by the middle court;
(b)
a middle court session must be held in a courtroom or
other place the middle court judge considers appropriate and
where proper decorum, safety, and efficiency must be
maintained;
(c)
a middle court session must be held at a time and place
that will promote the maximum convenience and attendance of
associated parties, especially a participating offender and his
family, and, absent a compelling reason, should be held on a
weekday and commencing no earlier than 5:30 p.m.;
(d)
a middle court session for an individual participant must
be held no less than every fourteen days until the participant
has successfully completed twelve months of the process, at
which time the court may allow the participant to attend a
session no less than once every thirty days; and
(e)
a middle court process may require the presence of a
person necessary for the efficient operation of a middle court
session;
(2)
shall designate in his office a person to serve as his
administrator of the process to supervise and coordinate the
implementation of the program by the Department of Probation,
Parole and Pardon Services. These duties shall include the
scheduling of the hearings, notification of the persons
involved, maintenance and safeguarding of all records and orders
associated with the process, filing of all orders and other
appropriate documents with the appropriate clerk of court, and
the production of a report required by this chapter; and
(3)
through his designated administrator, shall supervise and
coordinate the selection by the Department of Probation, Parole
and Pardon Services of counselors or other professionals to
analyze, test, treat, and evaluate an applicant or participant
contemplated in this chapter, and at least annually shall report
to the Attorney General information regarding funds expended by
the Department of Probation, Parole and Pardon Services for
these purposes.
(B) The Attorney
General shall assist the Supreme Court, the Department of
Probation, Parole and Pardon Services, and middle court in
establishing a uniform system of procedures, statistics, and
processes as set forth in this chapter, collecting reports he
prescribes from the circuit administrator in order to measure
the progress and operations of the middle courts, and annually
issuing a comprehensive report of his findings and
recommendations no later than July thirtieth.
(C) The Supreme Court
may propose and adopt rules for the middle court process in the
same manner as it proposes and promulgates rules for other
courts in the Unified Judicial System.
Section 14-29-70.
(A) The transfer of an
offender from the custody and jurisdiction of the circuit court
to custody and jurisdiction of the middle court must be made by
issue of a written order from the circuit court in response to
the approval of the application by the middle court. This order
must provide for the suspension of the offender's sentence
pending the conclusion of the middle court process. The middle
court then shall control and be responsible for the custody of
the offender upon entry of the circuit court's order.
(B) A middle court
judge must transfer to the circuit court custody of a person who
successfully completes the middle court process and the circuit
court must immediately release the successful participant from
his sentence. Where a person fails to successfully complete a
middle court process and is consequently dismissed from the
process, the middle court must transfer custody of the person to
the circuit court for commencement of the sentence interrupted
by the middle court process. A court may not reduce a sentence
for time spent participating in a middle court process and other
conditions of the sentence.
(C) The constitutional
notice requirements of the Victims' Bill of Rights apply to a
transfer, completion, or failure pursuant to this section.
Section 14-29-80. Nothing contained in this chapter affects the operation or establishment of juvenile drug courts in South Carolina.
Section 14-29-90. The General Assembly shall appropriate funds annually to an account to be maintained by the Supreme Court for the payment of mileage, subsistence, and per diem for middle court judges as provided by this chapter.
Section 14-29-100. The General Assembly annually shall appropriate funds to the Judicial Department, Office of the Attorney General, and the Department of Probation, Parole and Pardon Services for the employment and support of a middle court administrator for each circuit and other costs associated with the process as provided by this chapter."
B. This SECTION takes effect when consolidation as provided in this act is complete. /
Renumber sections to conform.
Amend title to conform.