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Current Status Bill Number:View additional legislative information at the LPITS web site.3934 Type of Legislation:General Bill GB Introducing Body:House Introduced Date:20010411 Primary Sponsor:Klauber All Sponsors:Klauber, Quinn and White Drafted Document Number:l:\council\bills\skb\18372som01.doc Residing Body:House Current Committee:Judiciary Committee 25 HJ Subject:Sexually Violent Predator Act, established time deadlines not jurisdictional; Crimes, Sex offenses, Corrections History Body Date Action Description Com Leg Involved ______ ________ ______________________________________ _______ ____________ House 20010411 Introduced, read first time, 25 HJ referred to Committee Versions of This Bill
TO AMEND CHAPTER 48, TITLE 44, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO THE SEXUALLY VIOLENT PREDATOR ACT BY ADDING SECTION 44-48-180 SO AS TO PROVIDE THAT THE TIME DEADLINES ESTABLISHED IN THIS ACT ARE NOT JURISDICTIONAL AND TO PROVIDE A CASE OR PETITION BROUGHT PURSUANT TO THIS CHAPTER MAY NOT BE DISMISSED FOR FAILURE TO MEET A PARTICULAR TIME DEADLINE; AND TO AMEND SECTIONS 44-48-40, 44-48-50, 44-48-70, 44-48-80, 44-48-90, AND 44-48-150, ALL RELATING TO THE PROCEDURES OF THE SEXUALLY VIOLENT PREDATOR ACT, SO AS TO PROVIDE FOR EXPANDED TIME FRAMES, REVIEW OF A PERSON'S RECORDS BY A MENTAL HEALTH PROFESSIONAL, DISCOVERY LIMITATIONS, AND VENUE.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. The 1976 Code is amended by adding:
"Section 44-48-180. The time deadlines established in this chapter are ministerial in nature and not jurisdictional. A petition or a case may not be dismissed for failure to meet a particular time deadline."
SECTION 2. Section 44-48-40(A) of the 1976 Code, as added by Act 321 of 1998, is amended to read:
"(A) When a person has been convicted of a sexually violent offense, the agency with jurisdiction shall give written notice to the multidisciplinary team established in Section 44-48-50 and the Attorney General at least ninety days before:
(1) two hundred seventy days before the anticipated release from total confinement of a person who has been convicted of a sexually violent offense, except that in the case of a person who is returned to prison for no more than ninety days as a result of a revocation of any type of community supervision program, written notice must be given as soon as practicable following the person's readmission to prison;
(2) ninety days before the anticipated hearing on fitness to stand trial following notice under Section 44-23-460 of a person who has been charged with a sexually violent offense but who was found unfit to stand trial for the reasons set forth in Section 44-23-410 following a hearing held pursuant to Section 44-23-430;
(3) ninety days before the anticipated hearing pursuant to Section 17-24-40(C) of a person who has been found not guilty by reason of insanity of a sexually violent offense; or
(4) two hundred seventy days before release of a person who has been found guilty of a sexually violent offense but mentally ill pursuant to Section 17-24-20."
SECTION 3. Section 44-48-50 of the 1976 Code, as added by Act 321 of 1998, is amended to read:
"Section 44-48-50. The Director of the Department of Corrections shall appoint a multidisciplinary team to review the records of each person referred to the team pursuant to Section 44-48-40. These records may include, but are not limited to, the person's criminal offense record, any relevant medical and psychological records, treatment records, and any disciplinary or other records formulated during confinement or supervision. The team, within thirty days of receiving notice as provided for in Section 44-48-40, shall assess whether or not the person satisfies the definition of a sexually violent predator. If it is determined the team determines that the person satisfies the definition of a sexually violent predator, the multidisciplinary team must forward a report of the assessment and the person's records to a psychiatrist or psychologist within either the Department of Corrections or Mental Health, whichever agency has jurisdiction over the person. The mental health professional must review the person's records considered by the multidisciplinary team and issue a written opinion about whether the person satisfies the legal definition of a sexually violent predator. The review must be completed within forty-five days of the mental health professional's receipt of the records. The mental health professional must forward the written review of the records and the records to the prosecutor's review committee. The assessment and the mental health professional's written opinion must be accompanied by all records relevant to the assessment and opinion. Membership of the multidisciplinary team must include:
(1) a representative from the Department of Corrections;
(2) a representative from the Department of Probation, Parole, and Pardon Services;
(3) a representative from the Department of Mental Health who is a trained, qualified mental health clinician with expertise in treating sexually violent offenders;
(4) a retired judge appointed by the Chief Justice who is eligible for continued judicial service pursuant to Section 2-19-100; and
(5) the Chief Attorney of the Office of Appellate Defense or his designee.
The Director of the Department of Corrections or his designee shall be the chairman of the team."
SECTION 4. Section 44-48-70 of the 1976 Code, as added by Act 321 of 1998, is amended to read:
"Section 44-48-70. When the prosecutor's review committee has determined that probable cause exists to support the allegation that the person is a sexually violent predator, the Attorney General may file a petition with the court in the jurisdiction where the person committed the offense. The petition, which must be filed within thirty forty-five days of the probable cause determination by the prosecutor's review committee, shall request that the court make a probable cause determination as to whether the person is a sexually violent predator. The petition must allege that the person is a sexually violent predator and must state sufficient facts that would support a probable cause allegation."
SECTION 5. Section 44-48-80 of the 1976 Code, as added by Act 321 of 1998, is amended to read:
"Section 44-48-80. (A) Upon filing of a petition, the court shall determine whether probable cause exists to believe that the person named in the petition is a sexually violent predator. The chief administrative judge may determine whether, in order to expedite the hearing of the petition and in the interests of justice, venue for the hearing should be moved to another county in the same judicial circuit. If the court determines that probable cause exists to believe that the person is a sexually violent predator, the person must be taken into custody if he is not already confined in a secure facility.
(B) Immediately upon being taken into custody pursuant to subsection (A), the person must be provided with notice of the opportunity to appear in person at a hearing to contest probable cause as to whether the detained person is a sexually violent predator. If the person is not already confined in a secure facility, this hearing must be held within seventy-two hours after a person is taken into custody pursuant to subsection (A). At this hearing the court shall:
(1) verify the detainee's identity;
(2) receive evidence and hear argument from the person and the Attorney General; and
(3) determine whether probable cause exists to believe that the person is a sexually violent predator.
The State may rely upon the petition and supplement the petition with additional documentary evidence or live testimony.
(C) At the probable cause hearing as provided in subsection (B) the detained person has the following rights in addition to any rights previously specified:
(1) to be represented by counsel;
(2) to present evidence on the person's behalf;
(3) to cross-examine witnesses who testify against the person; and
(4) to view and copy all petitions and reports in the court file.
Discovery is limited to the documents in the Attorney General's file and other documents which may be obtained through service of a subpoena duces tecum. The use of interrogatories or depositions is not permitted.
(D) If the probable cause determination is made, the court shall direct that the person be transferred to an appropriate secure facility including, but not limited to, a local or regional detention facility for an evaluation as to whether the person is a sexually violent predator. The evaluation must be conducted by a qualified expert retained by the State and approved by the court at the probable cause hearing."
SECTION 6. Section 44-48-90 of the 1976 Code, as added by Act 321 of 1998, is amended to read:
"Section 44-48-90. Within sixty ninety days after the completion of a hearing held pursuant to Section 44-48-80, the court shall conduct a trial to determine whether the person is a sexually violent predator. Within thirty days after the determination of probable cause by the court pursuant to Section 44-48-80, the person or the Attorney General may request, in writing, that the trial be before a jury. If such a request is made, the court shall schedule a trial before a jury at the next available date in the court of common pleas in the any county where the offense was committed. If no request is made, the trial must be before a judge in the county where the offense was committed. On motion of counsel, the court may move venue to another court in the same judicial circuit. The trial may be continued upon the request of either party and a showing of good cause, or by the court on its own motion in the due administration of justice, and only if the respondent will not be substantially prejudiced. At all stages of the proceedings under this chapter, a person subject to this chapter is entitled to the assistance of counsel, and if the person is indigent, the court shall appoint counsel to assist the person. If a person is subjected to an examination under this chapter, the person may retain a qualified expert of his own choosing to perform the an additional examination. All examiners are permitted to have reasonable access to the person for the purpose of the examination, as well as access to all relevant medical, psychological, criminal offense, and disciplinary records and reports. In the case of an indigent person who would like an expert of his own choosing, the court shall determine whether the services are necessary. If the court determines that the services are necessary and the expert's requested compensation for the services is reasonable, the court shall assist the person in obtaining the expert to perform an examination or participate in the trial on the person's behalf. The court shall approve payment for the services upon the filing of a certified claim for compensation supported by a written statement specifying the time expended, services rendered, expenses incurred on behalf of the person, and compensation received in the case or for the same services from any other source."
SECTION 7. Section 44-48-150 of the 1976 Code, as added by Act 321 of 1998, is amended to read:
"Section 44-48-150. Psychological reports, drug and alcohol reports, treatment records, reports of the diagnostic center, medical records, or victim impact statements which have been submitted to the court or admitted into evidence under this chapter must be part of the record but must be sealed and opened only on order of the court and may be discussed in open court."
SECTION 8. If any section, subsection, paragraph, subparagraph, sentence, clause, phrase, or word of this act is for any reason held to be unconstitutional or invalid, such holding shall not affect the constitutionality or validity of the remaining portions of this act, the General Assembly hereby declaring that it would have passed this act, and each and every section, subsection, paragraph, subparagraph, sentence, clause, phrase, and word thereof, irrespective of the fact that any one or more other sections, subsections, paragraphs, subparagraphs, sentences, clauses, phrases, or words hereof may be declared to be unconstitutional, invalid, or otherwise ineffective.
SECTION 9. This act takes effect upon approval by the Governor.
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