S 652 Session 109 (1991-1992)
S 0652 General Bill, By I.E. Lourie
A Bill to amend Section 23-31-140, Code of Laws of South Carolina, 1976,
relating to the purchasing of a pistol, so as to provide for the purchasing of
a pistol after making application to the South Carolina Law Enforcement
Division, and to provide for the approval of such applications and to amend
Section 16-23-490, relating to the additional penalty for the possession of a
firearm during the commission of certain crimes, so as to provide that a
person convicted of committing or attempting to commit a violent crime while
in the possession of a firearm or knife during the commission of a violent
crime must receive an additional five year mandatory term of imprisonment to
be served consecutively, and to provide conditions of this additional
sentence.
02/13/91 Senate Introduced and read first time SJ-5
02/13/91 Senate Referred to Committee on Judiciary SJ-5
03/18/92 Senate Committee report: Favorable with amendment
Judiciary SJ-22
Indicates Matter Stricken
Indicates New Matter
COMMITTEE REPORT
March 18, 1992
S. 652
Introduced by SENATOR Lourie
S. Printed 3/18/92--S.
Read the first time February 13, 1991.
THE COMMITTEE ON JUDICIARY
To whom was referred a Bill (S. 652), to amend Section 23-31-140,
Code of Laws of South Carolina, 1976, relating to the purchasing of a
pistol, etc., respectfully
REPORT:
That they have duly and carefully considered the same, and
recommend that the same do pass with amendment:
Amend the bill, as and if amended, by striking the bill in its entirety
and inserting therein the following:
/A BILL
TO AMEND SECTION 23-31-110(c), CODE OF LAWS OF SOUTH
CAROLINA, 1976, RELATING TO THE DEFINITION OF CRIME OF
VIOLENCE CONTAINED IN THE ARTICLE RELATING TO THE
REGULATION OF PISTOLS, SO AS TO PROVIDE THAT THE
TERM "CRIME OF VIOLENCE" MEANS ANY CRIME
SET FORTH IN SECTION 16-1-60 AND ANY STATE OR FEDERAL
OFFENSE PUNISHABLE BY IMPRISONMENT OF TWO YEARS
OR MORE AND TO EXCLUDE CERTAIN CRIMES FROM THE
DEFINITION; TO AMEND SECTION 23-31-140, RELATING TO
THE PURCHASE OF A PISTOL, SO AS TO PROVIDE FOR AN
INSTANT CHECK SYSTEM; AND TO AMEND SECTION 16-23-10(c), RELATING TO THE DEFINITION OF CRIME OF VIOLENCE
CONTAINED IN THE ARTICLE ON PISTOLS, SO AS TO PROVIDE
THAT THE TERM "CRIME OF VIOLENCE" MEANS
ANY CRIME SET FORTH IN SECTION 16-1-60 AND ANY STATE
OR FEDERAL OFFENSE PUNISHABLE BY IMPRISONMENT OF
TWO YEARS OR MORE AND TO EXCLUDE CERTAIN CRIMES
FROM THE DEFINITION.
Be it enacted by the General Assembly of the State of South
Carolina:
SECTION 1. Section 23-31-110(c) of the 1976 Code is amended to
read:
"(c) The term `crime of violence' means murder,
manslaughter (except negligent manslaughter arising out of traffic
accidents), rape, mayhem, kidnapping, burglary, robbery,
housebreaking, assault with intent to kill, commit rape, or rob, assault
with a dangerous weapon, or assault with intent to commit any offense
punishable by imprisonment for more than one year any crime
delineated as a violent crime in Section 16-1-60 as well as any state or
federal offense punishable by a term of imprisonment of two years or
more. The term `crime of violence' does not include negligent
manslaughter arising out of traffic accidents or any offense pertaining to
antitrust violations, unfair trade practices, restraints of trade, or other
similar offenses relating to the regulation of business
practices."
SECTION 2. Section 23-31-140 of the 1976 Code is amended to
read:
"(A) Prior to Before the purchase of a pistol,
the purchaser shall must complete an application in
triplicate in the presence of the dealer. Upon proper completion of
the application, the dealer must: (1) submit the original application to
the division by the end of the dealer's next business day; (2) retain a
copy for his records; and (3) give a copy to the applicant. The
application to be submitted to the division must be accompanied by a
firearm transaction record properly completed by the purchaser and the
dealer. The application to be furnished by the division must contain
the applicant's: (1) the applicant's name; (2)
the applicant's residence and business address; (3) the
applicant's date and place of birth; (4) the applicant's social
security number; (5) the applicant's South Carolina driver's
license number or South Carolina Department of Highways and Public
Transportation identification card number or, in the case of an
applicant on active duty in the military, the number from the applicant's
current military identification card; (6) the applicant's
physical description; (7) the applicant's fingerprint card and
photograph of applicant if applicant does not have items (4) and
(5); (8) a signed sworn statement by the applicant that he is not within
any classification set forth in item items (a), (b), (c), or
(d) of Section 16-23-30, and that he has not purchased a pistol within the
previous thirty days; (9) a provision signed by the purchaser that he
consents to have the dealer obtain criminal history record information;
(10) the type, model, caliber, serial number, and manufacturer of the
pistol which the applicant is applying to purchase; (11) the
signatures of the applicant and the dealer; and
(10) (12) and such other personal identifying
information as may be required by the division.
(B) No person is allowed to purchase a pistol from a dealer unless
he has fully completed the application. No dealer shall sell a
pistol to a purchaser until the purchaser has completed the application
as specified in subsection (A) and the dealer has requested and received
criminal history record information by telephone call to a toll-free access
number provided by the division. Upon receipt of a request for a
criminal history record information check, the division shall (1) review
its criminal history record information to determine if the purchaser is
prohibited from possessing or acquiring a pistol under items (a), (b), (c),
or (d) of Section 16-23-30, (2) inform the dealer if the division's record
indicates that the buyer is so prohibited, and (3) provide the dealer with
a unique reference number for each individual inquiry.
(C) No person is allowed to purchase more than one pistol on
each application and no person is allowed to purchase more than one
pistol during each thirty-day period. The division must provide
its response to the requesting dealer during the dealer's call, or by return
call without delay. If the criminal history record information check
indicates the prospective purchaser is not prohibited from possessing or
acquiring a pistol under items (a), (b), (c), or (d) of Section 16-23-30, a
dealer who has met the requirements of this section may immediately
complete the sale and shall not be deemed in violation of this section
with respect to such sale. If the criminal history record information
check indicates the prospective purchaser is a person classified under
items (a), (b), (c), or (d) of Section 16-23-30, the division shall have
until the end of the dealer's next business day to advise the dealer
whether or not the purchaser is prohibited from possessing or acquiring
a pistol under items (a), (b), (c), or (d) of Section 16-23-30. If not so
advised by the end of the dealer's next business day, a dealer who has
met the requirements of this section may immediately complete the sale
and shall not be deemed in violation of this section with respect to such
sale. In case of electronic failure or other circumstances beyond the
control of the division, the dealer must be advised immediately of the
reason for the delay and be given an estimate of the length of the delay.
After such notification, the division must, as soon as possible but in no
event later than the end of the dealer's next business day, inform the
requesting dealer if its records indicate the buyer is prohibited from
possessing or acquiring a pistol under items (a), (b), (c), or (d) of Section
16-23-30. A dealer who meets the requirements of this section and is
informed by the division that a response will not be available by the end
of the dealer's next business day may immediately complete the sale and
shall not be deemed in violation of this section with respect to such
sale.
(D) The provisions of subsection (C) do not apply to (1) a law
enforcement agency provided that the conditions of subsection (E) are
met, (2) an agency duly authorized to perform law enforcement duties,
(3) county and municipal penal facilities and the State Department of
Corrections, (4) a private security company licensed to do business
within this State, or (5) a person whose pistol is stolen or irretrievably
lost and who feels that it is essential that he immediately purchase a
pistol may obtain a special permit which will enable him to purchase a
pistol upon his sworn affidavit to the chief of police, or his designated
agent, of the municipality in which the applicant resides or if the
applicant resides outside the corporate limits of a municipality, to the
sheriff, or his designated agent, of the county in which the applicant
resides. This affidavit must cite the facts and reasons why the applicant
cannot wait for a thirty-day period to purchase a pistol. This special
permit must contain such information as required by the division and
must be on a form furnished by the division. The issuing officer shall
retain a copy of the permit and forward a copy to the Division. The
application must be signed by the dealer effecting the sale and must
contain such information as may be required by the division.
Except as otherwise required by law, the division shall not
maintain records longer than thirty days from any dealer's request for a
criminal history record information check pertaining to a purchaser who
is not found to be prohibited from possessing or acquiring a pistol under
items (a), (b), (c), or (d) of Section 16-23-30. However, the log which
lists requests made by dealers may be maintained for a period of twelve
months.
(E) A law enforcement agency or a private security company
licensed under the provisions of Title 40, Chapter 17, may purchase
more than one pistol during a thirty-day period as long as the following
conditions are met: (1) the pistols purchased are for use in this State; (2)
ownership of the pistols is retained by the law enforcement agency or
licensed security company; (3) multiple purchases under this provision
must be made on a special application form to be provided by the
division; (4) the multiple purchase form is signed by the chief of the law
enforcement agency or the chief executive officer of the licensed private
security company, whose name appears on the company license; (5) the
number of pistols purchased may not exceed the number of security
guards registered under the provisions of Title 40, Chapter 17, and
employed in this State; (6) a letter of authorization, in triplicate, signed
by the agency director, company representative, or their designees,
certifying the purchaser to be a representative of the agency or company
with delegated authority to purchase pistols for the agency or company.
The letter of authorization must contain such information as may be
required by the division. Upon receipt of the application form
required by subsection (A), the division shall immediately initiate a
search of all available information to determine if the purchaser is
prohibited from possessing or acquiring a pistol under items (a), (b), (c),
or (d) of Section 16-23-30. If the search discloses information
indicating that the purchaser is so prohibited from possessing or
acquiring a pistol, the division shall inform a law enforcement agency
in the county where the sale occurred and the dealer without delay.
(F) No person is allowed to purchase a pistol from a dealer
unless he is a resident of this State. For the purpose of this article, the
possession of a valid South Carolina driver's license or Department of
Highways and Public Transportation identification card constitutes proof
of residency. No person is allowed to purchase more than one
pistol on each application, and no person is allowed to purchase more
than one pistol during each thirty-day period.
(G) Upon proper completion of the application the dealer shall
submit the original application to the division, retain a copy for his
records, and give a copy to the applicant upon his purchase of a pistol.
The application to be submitted to the division must be accompanied by
a firearm transaction record properly completed by the purchaser and
the dealer.
For purposes of this section, the purchase of a pistol does not
include the redeeming of a pistol by its owner after it has been pledged
to secure a loan. The provisions of subsection (F) do not apply
to (1) a law enforcement agency provided that the conditions of
subsection (H) are met, (2) an agency duly authorized to perform law
enforcement duties, (3) county and municipal penal facilities and the
State Department of Corrections, (4) a private security company licensed
to do business within this State, or (5) a person whose pistol is stolen or
irretrievably lost and who feels that it is essential that he immediately
purchase a pistol may obtain a special permit which will enable him to
purchase a pistol upon his sworn affidavit to the chief of police, or his
designated agent, of the municipality in which the applicant resides or
if the applicant resides outside the corporate limits of a municipality, to
the sheriff, or his designated agent, of the county in which the applicant
resides. This affidavit must cite the facts and reasons why the applicant
cannot wait for a thirty-day period to purchase a pistol. This special
permit must contain such information as required by the division and
must be on a form furnished by the division. The issuing officer shall
retain a copy of the permit and forward a copy to the division. The
application must be signed by the dealer effecting the sale and must
contain such information as may be required by the division.
(H) A law enforcement agency or a private security
company licensed under the provisions of Title 40, Chapter 17, may
purchase more than one pistol during a thirty-day period as long as the
following conditions are met: (1) the pistols purchased are for use in this
State; (2) ownership of the pistols is retained by the law enforcement
agency or licensed security company; (3) multiple purchases under this
provision must be made on a special application form to be provided by
the division; (4) the multiple purchase form is signed by the chief of the
law enforcement agency or the chief executive officer of the licensed
private security company, whose name appears on the company license;
(5) the number of pistols purchased may not exceed the number of
security guards registered under the provisions of Title 40, Chapter 17,
and employed in this State; (6) a letter of authorization, in triplicate,
signed by the agency director, company representative, or their
designees, certifying the purchaser to be a representative of the agency
or company with delegated authority to purchase pistols for the agency
or company. The letter of authorization must contain such information
as may be required by the division.
(I) No person may purchase a pistol from a dealer
unless he is a resident of this State. For the purpose of this article, the
possession of a valid South Carolina driver's license or Department of
Highways and Public Transportation identification card constitutes proof
of residency. However, residency is not required of a person who is on
active duty in the military and who is in possession of a current military
identification card.
(J) For purposes of this section, the purchase of a pistol
does not include the redeeming of a pistol by its owner after it has been
pledged to secure a loan.
(K) The division shall assess a dealer a ten-dollar
processing fee for each criminal history record information check
request the division receives from that dealer.
(L) Any dealer who wilfully and intentionally requests,
obtains, or seeks to obtain criminal history record information under
false pretenses, or who wilfully and intentionally disseminates or seeks
to disseminate criminal history record information except as authorized
in this section is guilty of a misdemeanor and, upon conviction, must be
imprisoned for not more than thirty days or fined not more than one
hundred dollars, or both, in the discretion of the court.
(M) An employee of the division responsible for
making a determination of whether or not an applicant or purchaser is
prohibited from acquiring or possessing a pistol under items (a), (b), (c),
or (d) of Section 16-23-30 is immune from liability pursuant to the S.C.
Tort Claims Act, Section 15-78-10 et seq.
(N) The division is hereby authorized to promulgate
regulations to implement the provisions of this section.
SECTION 3. Section 16-23-10(c) of the 1976 Code is amended to
read:
"(c) The term `crime of violence' means murder,
manslaughter (except negligent manslaughter arising out of traffic
accidents), rape, mayhem, kidnapping, burglary, robbery,
housebreaking, assault with intent to kill, commit rape, or rob, assault
with a dangerous weapon, or assault with intent to commit any offense
punishable by imprisonment for more than one year any crime
delineated as a violent crime in Section 16-1-60 as well as any state or
federal offense punishable by a term of imprisonment of two years or
more. The term `crime of violence' does not include negligent
manslaughter arising out of traffic accidents or any offense pertaining to
antitrust violations, unfair trade practices, restraints of trade, or other
similar offenses relating to the regulation of business
practices."
SECTION 4. Upon approval by the Governor, this act takes effect
January 1, 1993./ .
JOHN A. MARTIN, for Committee.
STATEMENT OF ESTIMATED FISCAL
IMPACT
1. Estimated Cost to State-First Year $-0-
2. Estimated Cost to State-Annually
Thereafter $See Below
S. 652 amends Section 23-31-140 and 16-23-490 of the South
Carolina Code of Laws. Section 23-31-140 amends the requirements for
the purchase of a pistol by requiring the submission of an application to
SLED for investigation and approval prior to the final sale. Section 16-23-490 amends the mandatory prison sentence to five consecutive years
for those offenders found guilty of possession or display of what appears
to be a firearm during the commission of a violent crime.
The amendment to Section 23-31-149 requires the purchaser of a
pistol to complete an application in the presence of the dealer. This
application must be forwarded to SLED for approval or denial prior to
the final sale. SLED must return within 14 working days from the date
reflected on the return certified mail receipt or automatic approval is
given. This bill requires SLED to complete an investigation to verify the
validity of the information provided on the applications prior to approval
or denial. To complete this investigation it will be necessary for SLED
to dedicate staff to these investigations. No cost to the General Fund
will be associated with this increased workload due to the required
processing fee assessed to the purchaser. Each purchaser must pay a $15
processing fee of which $10 will be forwarded to SLED. The remaining
$5 will be retained by the dealer.
Section 16-23-490 is amended to require the five year mandatory
sentence presently required for all offenders found guilty of possession
of or display of what appears to be a firearm during the commission of
a violent crime to be served "consecutively" as opposed to
"consecutively or concurrently". It also provides a specific
definition of the word firearm.
In FY 90, according to SCDC, 6 inmates convicted of a violent crime
while in possession of or displaying what appears to be a firearm, were
sentenced to serve concurrent sentences. Using the sentencing
information known about those 6 inmates the following future cost to the
General Fund would be incurred.
Fiscal Additional Cost Per
Year Inmates Inmate
1995 1$15,845
1996 3$16,637
1997 4$17,469
1998 4$18,342
. . .
. . .
200414$24,581
200515$25,810
200615$27,101
Additional Cumulative
Fiscal Operating Operating
YearCostCost
1995 $ 15,845 $ 15,845
1996 $ 49,911 $ 65,756
1997 $ 69,876 $ 135,632
1998 $ 73,368 $ 209,000
. . .
. . .
2004 $344,134 $1,450,719
2005 $387,150 $1,837,869
2006 $406,515 $2,244,384
The construction cost of 15 beds is estimated at $690,000 based on
an average bed cost of $46,000 (for a 1200-bed medium/maximum
security facility in 1992 dollars).
Prepared By: Approved By:
Susan Dewitt George N. Dorn, Jr.
State Budget Analyst State Budget Division
A BILL
TO AMEND SECTION 23-31-140, CODE OF LAWS OF SOUTH
CAROLINA, 1976, RELATING TO THE PURCHASING OF A
PISTOL, SO AS TO PROVIDE FOR THE PURCHASING OF A
PISTOL AFTER MAKING APPLICATION TO THE SOUTH
CAROLINA LAW ENFORCEMENT DIVISION, AND TO PROVIDE
FOR THE APPROVAL OF SUCH APPLICATIONS AND TO AMEND
SECTION 16-23-490, RELATING TO THE ADDITIONAL PENALTY
FOR THE POSSESSION OF A FIREARM DURING THE
COMMISSION OF CERTAIN CRIMES, SO AS TO PROVIDE THAT
A PERSON CONVICTED OF COMMITTING OR ATTEMPTING TO
COMMIT A VIOLENT CRIME WHILE IN THE POSSESSION OF A
FIREARM OR WHO VISIBLY DISPLAYS A FIREARM OR KNIFE
DURING THE COMMISSION OF A VIOLENT CRIME MUST
RECEIVE AN ADDITIONAL FIVE YEAR MANDATORY TERM OF
IMPRISONMENT TO BE SERVED CONSECUTIVELY, AND TO
PROVIDE CONDITIONS OF THIS ADDITIONAL SENTENCE.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Section 23-31-140(A), (B), and (G) of the 1976 Code
is amended to read:
"(A) Prior to the purchase of a pistol, the purchaser
shall must complete an application in triplicate in the
presence of the dealer. The dealer must immediately forward the
completed application materials by certified mail to the State Law
Enforcement Division, except that the dealer must retain a copy of the
application and the receipt of certified mail for his records until such
time as the purchaser's application is approved or disapproved. Each
purchaser, at the time of application, must pay a processing fee of fifteen
dollars of which ten dollars must be forwarded to the State Law
Enforcement Division and five dollars must be retained by the
dealer. The application to be furnished by the division must contain
the applicant's (1) name; (2) residence and business address; (3) date and
place of birth; (4) social security number; (5) South Carolina driver's
license number or South Carolina Department of Highways and Public
Transportation identification card number; (6) physical description; (7)
fingerprint card and photograph of applicant if applicant does not have
items (4) and (5); (8) a signed sworn statement by the applicant that he
is not within any classification set forth in item (a), (b), (c), or (d) of
Section 16-23-30, and that he has not purchased a pistol within the
previous thirty days; (9) the signatures of applicant and the dealer; (10)
and such other personal identifying information as may be required by
the division.
(B) No person is allowed to purchase a pistol from a dealer
unless he has fully completed the application for at least
fourteen working days from the date of the return receipt of the certified
mailing as required in item (A) and only then if the application has been
approved by the South Carolina Law Enforcement Division.
The division must investigate a purchaser's eligibility to purchase
a pistol under the provisions of this section, and if requested by the
division, a local law enforcement agency must promptly provide
assistance in investigating a purchaser's eligibility to purchase a
pistol.
(G) Upon proper completion of the application the dealer shall
submit the original application to the division, retain a copy for his
records, and give a copy to the applicant upon his purchase of a pistol.
The application to be submitted to the division must be accompanied by
a firearm transaction record properly completed by the purchase and the
dealer.
The division must return the original application and provide
written notification to the dealer within fourteen days indicating whether
the 3application is approved or disapproved. If the application is
disapproved, the reason shall be stated. In either event, the signature of
the director of the division or his authorized agent must accompany the
action. If the division fails to return the application to the dealer within
the fourteen day period, the application is deemed to be approved.
For purposes of this section, the purchase of a pistol does not include
the redeeming of a pistol by its owner after it has been pledged to secure
a loan."
SECTION 2. Section 16-23-490 of the 1976 Code is amended to
read:
"Section 16-23-490. Any person who is convicted of
committing or attempting to commit a violent crime as defined in
Section 16-1-60, if the person is in possession of a firearm or visibly
displays what appears to be a firearm or visibly displays a knife during
the commission of the violent crime, shall must, in
addition to the punishment provided for the crime, be punished by a term
of imprisonment of five years; provided, that this five-year sentence
does not apply in cases where the death penalty or a life sentence
without parole is imposed for the violent crime.
Service of this five-year sentence is mandatory, no part of which
may be suspended nor probation granted. unless a longer
mandatory minimum term of imprisonment is provided by law for the
violent crime. The court may must impose this
mandatory five-year sentence to run consecutively. or
concurrently. The person so sentenced under this section is not
eligible during this five-year period for parole, work release, or extended
work release. Such five years may not be suspended and
the person may not complete his term of imprisonment in less than five
years pursuant to good-time credits or work credits; however, the
person may earn credits earned during this period.
As used in this section, `firearm' means any machine gun,
automatic rifle, revolver, pistol, or any weapon which will, or is
designed to, or may readily be converted to expel a projectile; `knife'
means an instrument or tool consisting of a sharp cutting blade whether
or not fastened to a handle which is capable of being used to inflict a cut,
slash, or wound.
No such additional punishment may be imposed unless the
indictment alleged as a separate count that the person was in possession
of a firearm or visibly displayed what appeared to be a firearm or visibly
displays a knife during the commission of the violent crime and
conviction was had upon this count in the indictment. The penalties
prescribed in this section may not be imposed unless the person
convicted was at the same time indicted and convicted of a violent crime
as defined in Section 16-1-60.
As used in this section, `firearm' means any machine gun,
automatic rifle, revolver, pistol, or any weapon which will, or is
designed to, or may readily be converted to expel a projectile; `knife'
means an instrument or tool consisting of a sharp cutting blade whether
or not fastened to a handle which is capable of being used to inflict a cut,
slash, or wound."
SECTION 3. This act takes effect upon approval by the Governor.
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