S 650 Session 112 (1997-1998)
S 0650 General Bill, By Reese
A BILL TO AMEND CHAPTER 22, TITLE 17, CODE OF LAWS OF SOUTH CAROLINA, 1976,
RELATING TO THE ESTABLISHMENT AND OPERATION OF THE PRETRIAL INTERVENTION
PROGRAM, SO AS TO PROVIDE THAT THE RESPONSIBILITIES HELD BY THE CIRCUIT COURT
SOLICITORS ARE TRANSFERRED TO THE CHIEF JUSTICE OF THE SUPREME COURT.
04/15/97 Senate Introduced and read first time SJ-7
04/15/97 Senate Referred to Committee on Judiciary SJ-7
A BILL
TO AMEND CHAPTER 22, TITLE 17, CODE OF LAWS OF
SOUTH CAROLINA, 1976, RELATING TO THE
ESTABLISHMENT AND OPERATION OF THE PRETRIAL
INTERVENTION PROGRAM, SO AS TO PROVIDE THAT THE
RESPONSIBILITIES HELD BY THE CIRCUIT COURT
SOLICITORS ARE TRANSFERRED TO THE CHIEF JUSTICE OF
THE SUPREME COURT.
Be it enacted by the General Assembly of the State of South
Carolina:
SECTION 1. Chapter 22, Title 17 of the 1976 Code is amended to
read:
"CHAPTER 22
Pretrial Intervention Program
Section 17-22-10. This chapter may be cited as the 'Pretrial
Intervention Act'.
Section 17-22-20. When used in this chapter:
(1) The term 'Prosecutorial discretion' shall mean
the power of the circuit solicitor to consider all circumstances of
criminal proceedings and to determine whether any legal action is to
be taken and, if so taken, of what kind and degree and to what
conclusion.
(2) The term 'Noncriminal disposition' shall mean
the dismissal of a criminal charge without prejudice to the State to
reinstate criminal proceedings on motion of the solicitor.
Reserved.
Section 17-22-30. (A) Each circuit solicitor shall have
The Chief Justice of the Supreme Court the prosecutorial
discretion as defined herein and shall as a matter of such
prosecutorial discretion establish a pretrial intervention program
in the respective judicial circuits.
(B) The circuit solicitors are specifically Court is
endowed with and shall retain all discretionary powers under the
common law.
(C) A pretrial intervention program shall be is
under the direct supervision and control of the circuit
solicitor; Court. However, he the Court
may contract for services with any agency desired.
(D) The South Carolina Commission on Prosecution Coordination
shall oversee administrative procedures for the Circuit
Solicitors' Court's pretrial intervention programs.
Section 17-22-40. There is established the office of Pretrial
Intervention Coordinator whose responsibility is to assist the
solicitor Supreme Court in each judicial circuit in
establishing and maintaining a pretrial intervention program. The
office of Pretrial Intervention Coordinator must be within the South
Carolina Commission on Prosecution Coordination. The coordinator
and such staff as is necessary to assist in the implementation of the
provisions of this chapter must be employed by the South Carolina
Commission on Prosecution Coordination. The office of the
coordinator must be funded by an appropriation to the Commission
on Prosecution Coordination in the state general appropriation
appropriations act.
Section 17-22-50. A person may not be considered for intervention
if he has previously been accepted into an intervention program nor
may intervention be considered for those individuals charged with
blackmail, driving under the influence of intoxicating liquor or drugs,
any traffic-related offense which is punishable only by fine or loss of
points, or any fish, game, wildlife, or commercial fishery-related
offense which is punishable by a loss of eighteen points as provided
in Section 50-9-1020, or any crime of violence as defined in Section
16-1-60. However, this section does not apply if the solicitor
Supreme Court determines the elements of the crime do not
fit the charge.
Section 17-22-55. As a condition of admission to the pretrial
intervention program of a person charged with a fish, game, wildlife,
or commercial fishery-related offense which does not disqualify him
for intervention, this person shall pay an additional administrative
charge equal to the maximum monetary fine, not to exceed five
hundred dollars, which could be imposed for the offense. The
administrative charge must be deposited in the game and fish fund of
the county where the offense was committed. Also, if any
property was seized and confiscated at the time of the arrest for the
offense, as a condition of admission to the pretrial intervention
program, the offender must agree to the retention and sale of that
property as provided by law by the law enforcement agency making
the seizure. The proceeds from the sale also must be deposited in the
game and fish fund of the county wherein where the
offense was committed.
Section 17-22-60. Intervention is appropriate only where:
(1) there is substantial likelihood that justice will be served if
the offender is placed in an intervention program;
(2) it is determined that the needs of the offender and the State
can better be met outside the traditional criminal justice process;
(3) it is apparent that the offender poses no threat to the
community;
(4) it appears that the offender is unlikely to be involved in
further criminal activity;
(5) the offender, in those cases where it is required, is likely to
respond quickly to rehabilitative treatment;
(6) the offender has no significant history of prior delinquency
or criminal activity;
(7) the offender has not previously been accepted in a pretrial
intervention program.
Section 17-22-70. Prior to admittance of Before
admitting an offender into an intervention program, the
solicitor or judge, if application is made to the court pursuant to
Section 17-22-100, Supreme Court may require the
offender to furnish information concerning the offender's past
criminal record, education and work record, family history, medical
or psychiatric treatment or care received, psychological tests taken
and other information which, in the solicitor's or judge's
Court's opinion, has bearing on the decision as to whether
the offender should be admitted. Solicitor's office The
Court's records under this section shall adhere to and abide by
Federal Confidentiality Regulation 42 CFR part 2 and any other
applicable federal, state, or local regulations.
Section 17-22-80. Prior to any Before a person
being is admitted to a pretrial intervention program
the victim, if any, of the crime for which the applicant is charged and
the law enforcement agency employing the arresting officer
shall must be asked to comment in writing as to
whether or not the applicant should be allowed to enter an
intervention program. In each case involving admission to an
intervention program, the solicitor or judge, if application is
made to the court pursuant to Section 17-22-100, Supreme
Court shall consider the recommendations of the law
enforcement agency and the victim, if any, in making a decision.
Section 17-22-90. An offender who enters an intervention program
shall:
(1) waive, in writing and contingent upon his successful
completion of the program, his or her right to a speedy trial;
(2) agree, in writing, to the tolling while in the program of all
periods of limitation established by statutes or rules of court;
(3) agree, in writing, to the conditions of the intervention
program established by the solicitor Supreme Court;
(4) in the event if there is a victim of the crime,
agree, in writing, to make restitution to the victim within a specified
period of time and in an amount to be determined by the
solicitor Court;
(5) agree, in writing, that any records relating to participation
in pretrial intervention or information obtained through pretrial
intervention is not admissible as evidence in subsequent proceedings,
criminal or civil, and communication between pretrial intervention
counselors and defendants shall remain as privileged communication
unless a court of competent jurisdiction determines that there is a
compelling public interest that such communication be revealed. In
no case shall a written admission of guilt be required of a defendant
prior to before acceptance nor prior to
before completion of the pretrial intervention program; and
(6) if the offense is committing or attempting to commit a lewd
act upon a child under the age of sixteen years pursuant to Section
16-15-140, agree in the agreement between the solicitor's
office Court and the offender provided for in Section
17-22-120 to allow information about the offense to be made
available to day care centers, group day care homes, family day care
homes, church or religious day care centers, and other facilities
providing care to children and related agencies by the State Law
Enforcement Division pursuant to regulations which the State Law
Enforcement Division shall promulgate.
Section 17-22-100. An offender must make application to an
intervention program or to the chief administrative judge of
the Supreme Court of general sessions no later
than seventy-five days after service of the warrant or within ten days
following appointment of counsel for the charge for which he makes
the application. However, in the discretion of the solicitor or the
chief administrative judge of the court of general sessions, if
application is made directly to the judge, the provisions of this
section may be waived. Applications received by the chief
administrative judge of the Court of general sessions under
this section may be preliminarily approved by the judge
Court pending a determination by the pretrial office that the
offender is eligible to participate in a pretrial program pursuant to
Sections 17-22-50 and 17-22-60. Applications received by the
chief administrative judge of the Court of general
sessions and information obtained pursuant to Section 17-22-70
must be forwarded to the pretrial office.
Section 17-22-110. An applicant to an intervention program
or an offender who applies to the chief administrative judge
of the Supreme Court of general sessions for
admission to a program pursuant to Section 17-22-100 shall pay a
nonrefundable application fee of fifty dollars and, if accepted into the
program, a nonrefundable participation fee of two hundred fifty
dollars prior to before admission. All fees paid must
be deposited into a special circuit solicitor's
Supreme Court fund for operation of the pretrial intervention
program. All fees or costs of supervision may be waived partially or
totally by the solicitor Court in cases of indigency.
The solicitor may also Chief Justice of the Supreme
Court, if he determines necessary, in situations other than
indigency, may allow scheduling of payments in lieu
instead of lump sum payment. In no case shall aggregate
fees for application and participation in an intervention program
exceed three hundred dollars. However, in cases where the
solicitor Court determines that referral to another
agency or program is needed to achieve rehabilitation for a problem
directly related to the charge, the defendant may be required to pay
his participation in that special program, except that no
services may not be denied due to inability to pay.
Section 17-22-120. In any a case in which an
offender agrees to an intervention program, a specific agreement must
be made between the solicitor Supreme Court and
the offender. This agreement shall include includes
the terms of the intervention program, the length of the
program, and a section stating the period of time after which
the prosecutor Court will either dismiss the charge
or seek a conviction based upon that charge refer the case
to the circuit solicitor for prosecution. The agreement must be
signed by the offender and his or her counsel, if represented
by counsel, and filed in the solicitor's office with
the Court. The Commission on Alcohol and Drug Abuse shall
provide training if requested on the recognition of alcohol and drug
abuse to counselor employees of local pretrial intervention programs
and the local agency authorized by Section 61-5-320 shall provide
services to alcohol and drug abusers if referred by pretrial
intervention programs. However, no services may be denied due to
an offender's inability to pay.
Section 17-22-130. Notwithstanding the provisions of Section
17-1-40, in all cases where an offender is accepted for intervention
a report must be made and retained on file in the solicitor's
Supreme Court's office, regardless of whether or not the
offender successfully completes the intervention program. All reports
must be retained on file in the solicitor's Court's
office for a period of two years after successful completion, two years
after rejection, or two years after unsuccessful completion of the
program. After the retention of these reports for two years, they may
be destroyed. The circuit solicitor Court shall
furnish to the South Carolina Law Enforcement Division personal
identification information on each person who applies for
intervention, is subsequently accepted or rejected and successfully or
unsuccessfully completes the program. This information may only be
used by the division and the State Coordinator's Office in those cases
where a circuit solicitor inquires as to whether a person has
previously been accepted in an intervention program. However, that
information may be confidentially released to the State Coordinator's
Office to assist in compiling annual reports. The identification
information on any defendant must not be under any circumstances
released as public knowledge.
Section 17-22-140. Prior to Before the
completion of the pretrial intervention program, the offender
shall make restitution, as determined by the solicitor
Supreme Court, to the victim, if any.
Section 17-22-150. (a)(A) In the event
If an offender successfully completes a pretrial intervention
program, the solicitor Supreme Court shall effect a
noncriminal disposition of the charge or charges pending against the
offender. Upon such the disposition, the offender
may apply to the court for an order to destroy all official records
relating to his arrest and no evidence of the records pertaining to the
charge may be retained by any municipal, county, or state entity or
any individual, except as otherwise provided in Section 17-22-130.
The effect of the order is to restore the person, in the contemplation
of the law, to the status he occupied before the arrest. No person as
to whom the order has been entered may be held thereafter under any
provision of any law to be guilty of perjury or otherwise giving a
false statement by reason of his failure to recite or acknowledge the
arrest in response to any inquiry made of him for any purpose.
(b)(B) In the event If the offender
violates the conditions of the program agreement:
(1) the solicitor Court may terminate the
offender's participation in the program,;
(2) the waiver executed pursuant to Section 17-22-90 shall
be is void on the date the offender is removed from the
program for the violation; and
(3) the prosecution of pending criminal charges against the
offender shall be is resumed by the solicitor.
Section 17-22-170. Any A municipal, county, or
state entity or any an individual who unlawfully
retains or releases information on an offender's participation in a
pretrial intervention program is guilty of a misdemeanor and, upon
conviction, must be punished by a fine fined not
exceeding more than two thousand dollars or by
imprisonment imprisoned not to exceed
more than one year.
The provisions of this section do not apply to circuit
solicitors the Supreme Court or their its
staff in the performance of their official duties."
SECTION 2. This act takes effect upon approval by the Governor.
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