Reference is to Printer's Date 3/1/18-H.
Amend the bill, as and if amended, by striking all after the enacting language and inserting:
/ SECTION 1. Article 1, Chapter 3, Title 17 of the 1976 Code is amended by adding:
"Section 17-3-47.
(A) All Affidavits of Indigency and
Application for Counsel forms as required pursuant to Section
17-3-45 shall include, but not be limited to:
(1)
identifying information contained on the Affidavits of
Indigency and Application for Counsel forms as of the effective
date of this section;
(2)
present employment and salary or wages and past employment
and salary or wages for the past five years for the applicant
and the applicant's spouse;
(3)
unemployment or workers' compensation benefits or other
forms of public assistance programs such as TANF, SNAP,
Medicaid, or supplemental social security or disability income
paid to the applicant or the applicant's spouse within the past
five years;
(4)
current military, veterans, or retirement benefits;
(5)
current information regarding dependents such as monthly
daycare costs and any court-ordered child support payments;
(6)
court-ordered alimony payments;
(7)
current miscellaneous assets regarding business,
profession, and any form of self-employment; rent payments,
interest, and dividends; pensions, annuities, and life insurance
payments; gifts and inheritances; and any other assets from any
other source valued over one thousand dollars;
(8)
current personal property including real estate, stocks,
bonds, notes, motor vehicles, or other personal property valued
over one thousand dollars;
(9)
current cash on hand in a checking or savings account with
any bank or credit union;
(10)
current debt including amounts owed on liens, mortgages,
encumbrances, or other debts;
(11)
current unusual or continuing medical expenses and those
incurred within the previous year;
(12)
whether anyone else claims the applicant as a dependent
for tax purposes;
(13)
whether the applicant is currently incarcerated or on
probation or parole for the offense or another offense and
whether other criminal charges are pending for which an attorney
has been appointed; and
(14)
any other information deemed necessary and useful by the
South Carolina Court Administration.
(B) In determining
whether the requirements of subsection (A) have been fully
disclosed, the South Carolina Department of Probation, Parole
and Pardon Services (department) shall require the applicant to
provide supporting documentation including, but not limited
to:
(1)
the most recent tax return and tax returns for the
previous five years, if applicable, for the applicant and the
applicant's spouse and the year in which the last income tax
return was filed;
(2)
W2s for the most recent year and for the previous five
years of the applicant and the applicant's spouse if tax returns
are not available;
(3)
any relevant court orders pertaining to the financial
status of the applicant or the applicant's spouse including
bankruptcy or debt proceedings or court-ordered child support or
alimony payments;
(4)
a credit report obtained within the previous year for the
applicant and the applicant's spouse. Costs associated with
obtaining the required credit report must be borne by the
applicant;
(5)
current lease agreement or mortgage statement of the
applicant;
(6)
the most recent three checking account and savings account
bank statements, if applicable, for the applicant and the
applicant's spouse; and
(7)
any relevant medical invoices and receipts for the
previous year of the applicant and the applicant's spouse.
If the spouse of the applicant is the
victim of the crime charged against the applicant, the spouse's
information in this section is not required for screening.
(C) In addition to the
requirements of subsection (A) and any other certifications or
acknowledgments deemed necessary by the department presently
existing as of the effective date of this section or required in
the future, the applicant must certify by signature on all
Affidavits of Indigency and Application for Counsel forms
knowledge as to the existence of the provisions contained in
Section 17-3-48 and the form must contain the following:
'I certify and acknowledge that it is a
crime to wilfully give false, misleading, or incomplete
information on any Affidavit of Indigency and Application for
Counsel form for the purpose of misrepresenting my financial
status or situation in order to qualify for appointed counsel
pursuant to the provisions of this chapter and doing so is a
crime punishable by a fine of not more than five thousand
dollars or imprisonment for not more than five years.'
(D) All Affidavits of
Indigency and Application for Counsel forms must be notarized
with any costs associated with the notarization borne by the
applicant.
(E) The department
shall review all Affidavits of indigency and Application for
Counsel forms to determine whether:
(1)
the reported income appears to be consistent with reported
expenses;
(2)
the reported income appears to be consistent with reported
assets;
(3)
court-ordered child support payments appear to indicate an
income higher than the reported income; and
(4)
the applicant posted an amount of bail inconsistent with
the claim that he is financially unable to employ counsel.
The department is required to verify the
accuracy of the information provided by an applicant. An
employee of the department must sign the document forms
certifying that the department has verified the information and
determined that the applicant is eligible for the appointment of
counsel pursuant to the provisions of this chapter.
(F) If the department
finds that a person to whom counsel has been provided in any
court in this State is financially able to employ counsel, or
contribute to the costs of employing counsel, the department
shall provide the court that initially appointed counsel a
written report as to the reasons the department believes the
person is financially able to employ counsel or contribute to
the costs of employing counsel based on the factors included in
subsection (A) and determinations made pursuant to subsection
(E). In addition, if an attorney appointed to represent a
defendant pursuant to the provisions of this chapter has reason
to believe his client is financially able to employ counsel, or
contribute to the costs of employing counsel, the attorney has a
duty to notify the department, in writing, as to his beliefs
regarding the matter. After receipt of such notice, the
department shall examine the financial condition of the
defendant. If in the course of the investigation, the department
reasonably believes that the defendant is partially or fully
able to employ counsel, the department shall report those
findings to the court. The court shall question the defendant
under oath concerning the contents of the Affidavit of Indigency
and Application for Counsel form and may require the department
to produce any additional evidence on the issue of the
defendant's financial inability to employ counsel. If the court
determines that the defendant is partially or fully able to
employ counsel, the defendant's counsel may ask that he be
relieved as counsel or continue his representation of the
defendant with the court ordering the defendant to pay a
reasonable attorney fee to the South Carolina Commission on
Indigent Defense. The determination that a defendant is indigent
or partially indigent is subject to review at any time by any
court before whom the defendant's case is pending."
SECTION 2. Article 1, Chapter 3, Title 17 of the 1976 Code is amended by adding:
"Section 17-3-48.
(A) Notwithstanding another provision
of law, it is unlawful for a person to wilfully give false,
misleading, or incomplete information on any Affidavit of
Indigency and Application for Counsel form for the purpose of
misrepresenting his financial status or situation in order to
qualify for appointed counsel pursuant to the provisions of this
chapter. A person who violates the provisions of this section is
guilty of a felony and, upon conviction, must be fined not more
than five thousand dollars or imprisoned for not more than five
years.
(B) If a public
defender or an attorney representing a defendant previously
determined indigent for purposes of this chapter has knowledge
of a violation of the provisions of subsection (A), the public
defender or the appointed attorney must comply with Rule 407 of
the South Carolina Rules of Professional Conduct."
SECTION 3. The South Carolina Court Administration is directed to submit revised forms for Affidavits of Indigency and Application for Counsel in compliance with the requirements of this act. The South Carolina Court Administration shall provide a revised form for publication by the South Carolina Supreme Court. Additionally, beginning January 15, 2019, and each year thereafter, the South Carolina Department of Probation, Parole and Pardon Services shall report to the General Assembly the number of Affidavits of Indigency and Application for Counsel accepted and rejected and, if rejected, the reasons for the rejection; and the department shall make further recommendations to the General Assembly on additional requirements for applicants and supporting documentation that should be required of all applicants in order to verify their financial status and whether their application should be approved and counsel appointed accordingly. The respective House and Senate Oversight Committees shall include a review of this report in their regularly scheduled review of the South Carolina Department of Probation, Parole and Pardon Services.
SECTION 4. The repeal or amendment by this act of any law, whether temporary or permanent or civil or criminal, does not affect pending actions, rights, duties, or liabilities founded thereon, or alter, discharge, release or extinguish any penalty, forfeiture, or liability incurred under the repealed or amended law, unless the repealed or amended provision shall so expressly provide. After the effective date of this act, all laws repealed or amended by this act must be taken and treated as remaining in full force and effect for the purpose of sustaining any pending or vested right, civil action, special proceeding, criminal prosecution, or appeal existing as of the effective date of this act, and for the enforcement of rights, duties, penalties, forfeitures, and liabilities as they stood under the repealed or amended laws.
SECTION 5. 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 6. A pilot program is created in the following counties: Richland, Horry, Chester, Colleton, Edgefield, and Lee Counties. The purpose of the pilot program is to gather information regarding the implementation of this act. The South Carolina Department of Probation, Parole and Pardon Services must issue a report to the General Assembly no later than January 1, 2020. The report must include, but is not limited to, the number of Affidavits of Indigency and Application for Counsel forms accepted and rejected and, if rejected, the reasons for the rejection, any additional resources, if any, required to fully implement this act, and any other information or recommendations the department deems necessary.
SECTION 7. SECTION 6 of this act takes effect upon approval by the Governor. The remaining sections take effect July 1, 2020. /
Renumber sections to conform.
Amend title to conform.