H 4657 Session 111 (1995-1996)
H 4657 General Bill, By Haskins, Allison, A.W. Byrd, C.D. Chamblee, Cooper,
Davenport, Easterday, R.J. Herdklotz, Kelley, Knotts, Law, Limehouse, Loftis,
Rice, Meacham, Robinson, Simrill, Stille, Vaughn, D.C. Waldrop and D.A. Wright
Similar(S 1293, S 1296)
A Bill to amend the Code of Laws of South Carolina, 1976, by adding Section
16-3-1535 so as to provide that all law enforcement agencies shall provide
crime victims with a copy of the crime incident report relating to their case
and certain other information; to add Section 16-3-1537 so as to require a
criminal sentencing judge to apply amounts forfeited to the court by a person
pursuant to Section 17-15-90 toward the payment of restitution the court
orders the person to pay; to add Section 17-1-18 so as to require the State
Supreme Court to promulgate rules to allow an appeal of certain court orders
if a victim impact statement was not considered by the court or if a
reasonable amount of restitution was not ordered; to add Section 24-21-490 so
as to provide that the Department of Probation, Parole, and Pardon Services
shall collect and distribute restitution, the procedure for collecting and
distributing restitution, the maintenance of a minimum number of restitution
beds and publishing of an annual report concerning the State's efforts to
collect restitution and other fees; to amend Section 16-3-1110, as amended,
relating to definitions contained in certain provisions regarding the
compensation of victims of crime, so as to provide a definition of
"restitution"; and to amend Section 16-3-1530, as amended, relating to the
rights of victims and witnesses, so as to provide the amount of restitution a
judge must order an offender to pay.
02/22/96 House Introduced and read first time HJ-2
02/22/96 House Referred to Committee on Judiciary HJ-3
04/24/96 House Committee report: Favorable with amendment
Judiciary HJ-331
05/01/96 House Debate adjourned until Thursday, May 2, 1996 HJ-28
05/02/96 House Amended HJ-16
05/02/96 House Read second time HJ-16
05/07/96 House Read third time and sent to Senate HJ-22
05/08/96 Senate Introduced and read first time SJ-13
05/08/96 Senate Referred to Committee on Judiciary SJ-13
Indicates Matter Stricken
Indicates New Matter
AMENDED
May 2, 1996
H. 4657
Introduced by REPS. Haskins, Easterday, Rice, Knotts, Limehouse,
Simrill, Cooper, Meacham, Herdklotz, Byrd, Loftis, Stille,
Chamblee, Waldrop, Kelley, Vaughn, Law, Allison, Davenport,
Wright and Robinson
S. Printed 5/2/96--H.
Read the first time February 22, 1996.
STATEMENT OF ESTIMATED FISCAL
IMPACT
1. Estimated Cost to State-First Year$2,008,690
2. Estimated Cost to State-Annually Thereafter$3,048,734
Itemization of Additional Cost to General Fund for First Year
RECURRING NON-RECURRING
Personal Service & Employer
Contributions$ 1,142,661
FTE (83.00)
Operating Costs463,029 $403,000
Other ______________ _____________
TOTAL $1,605,690 $403,000
(83.00)
Note: The general fund impact for the South Carolina Department
of Probation, Parole, and Pardon corresponds to section numbers in
the bill.
SOUTH CAROLINA DEPARTMENT OF PROBATION,
PAROLE, AND PARDON SERVICES (DPPPS):
Sections 1, 2, 3, 4 and 6 of the bill pose no fiscal impact for the
department.
Section 5: This section assigns responsibility for the collection
and distribution of restitution from offenders under probationary or
intensive probationary supervision to DPPPS from the Clerks of Court.
Due to the lack of a statewide automated court system to identify the
number of restitution cases, amounts owed and number of victims, the
following assumptions are based on estimates of cases in the
jurisdiction of this legislation.
It is estimated that 10,000 offenders are liable for $20,000,000 in
restitution to pay with each offender having an average 3 victims
(30,000 total victims). Given these assumptions, the following costs
can be estimated:
The accounts receivable data system would need t o be updated to handle the distribution of restitution payments to victims. The estimated costs to update the data system on a contractual basis is $100,000 in non-recurring funds. Second, DPPPS estimates the need for additional agents for restitution enforcement, collection and victims services.
The specific cost estimates are as follows:
Recurring Non-Recurring
Probation Agents
with Operating Costs$446,282 $75,000
(25.00)
Accounting Technicians
with Operating Costs318,163 90,000
(30.00)
Victim Coordinators
with Operating Costs 141,014 33,000
(11.00)
Trust Accountants
with Operating Costs173,583 30,000
(10.00)
$1,079,042 $228,000
(76.00)
Section 7: This section requires the department maintain a
minimum of twelve restitution center beds, or contract at other
appropriate residential facilities, for every 2500 offenders supervised
by the department. In order to meet the requirement of this section
$526,648 and 7.00 FTE's in recurring personal service and operating
costs and $75,000 in non-recurring costs would be required.
Annualization costs for recurring expenses would be $1,443,044 in
fiscal year 1997-98.
*If available facilities could not be located and contracted beds were
not available a restitution center would have to be built to meet the
mandate. A non-recurring amount of $1 million would be needed to
construct a 48 bed facility.
JUDICIAL DEPARTMENT:
Information regarding the fiscal impact on the Judicial Department
is still pending and will be forwarded to the committee upon receipt.
STATE LAW ENFORCEMENT DIVISION (SLED):
Passage of H. 4657, as amended, will not have a fiscal impact on
SLED.
ATTORNEY GENERAL'S OFFICE:
Passage of H. 4657, as amended, will have a minimal cost to the
agency and can be absorbed from existing funds.
LOCAL GOVERNMENT IMPACT:
Pursuant to Section 2-7-76 of the South Carolina Code of Laws,
1976, the Office of State Budget has surveyed 24 members of the
FIST network. Of the 15 respondents, seven already provide copies
of crime incident reports at no charge. The remaining eight
respondents indicate costs ranging from $500 to $5,000 to provide
copies of these reports at no charge.
Approved By:
Michael L. Shealy
Office of State Budget
A BILL
TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976,
BY ADDING SECTION 16-3-1535 SO AS TO PROVIDE THAT
ALL LAW ENFORCEMENT AGENCIES SHALL PROVIDE
CRIME VICTIMS WITH A COPY OF THE CRIME INCIDENT
REPORT RELATING TO THEIR CASE AND CERTAIN OTHER
INFORMATION; TO ADD SECTION 16-3-1537 SO AS TO
REQUIRE A CRIMINAL SENTENCING JUDGE TO APPLY
AMOUNTS FORFEITED TO THE COURT BY A PERSON
PURSUANT TO SECTION 17-15-90 TOWARD THE PAYMENT
OF RESTITUTION THE COURT ORDERS THE PERSON TO PAY;
TO ADD SECTION 17-1-18 SO AS TO REQUIRE THE STATE
SUPREME COURT TO PROMULGATE RULES TO ALLOW AN
APPEAL OF CERTAIN COURT ORDERS IF A VICTIM IMPACT
STATEMENT WAS NOT CONSIDERED BY THE COURT OR IF
A REASONABLE AMOUNT OF RESTITUTION WAS NOT
ORDERED; TO ADD SECTION 24-21-490 SO AS TO PROVIDE
THAT THE DEPARTMENT OF PROBATION, PAROLE, AND
PARDON SERVICES SHALL COLLECT AND DISTRIBUTE
RESTITUTION, THE PROCEDURE FOR COLLECTING AND
DISTRIBUTING RESTITUTION, THE MAINTENANCE OF A
MINIMUM NUMBER OF RESTITUTION BEDS AND
PUBLISHING OF AN ANNUAL REPORT CONCERNING THE
STATE'S EFFORTS TO COLLECT RESTITUTION AND OTHER
FEES; TO AMEND SECTION 16-3-1110, AS AMENDED,
RELATING TO DEFINITIONS CONTAINED IN CERTAIN
PROVISIONS REGARDING THE COMPENSATION OF VICTIMS
OF CRIME, SO AS TO PROVIDE A DEFINITION OF
"RESTITUTION"; AND TO AMEND SECTION
16-3-1530, AS AMENDED, RELATING TO THE RIGHTS OF
VICTIMS AND WITNESSES, SO AS TO PROVIDE THE
AMOUNT OF RESTITUTION A JUDGE MUST ORDER AN
OFFENDER TO PAY.
Amend Title To Conform
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. The 1976 Code is amended by adding:
"Section 16-3-1535. (A) General law enforcement agencies
shall provide crime victims, free of charge, a copy of the crime
incident report relating to their case and a document which describes
the statutory rights the state grants crime victims in criminal cases that
lists the local crime victim assistance providers. The statutory rights
contained in this document shall include all rights contained in Section
16-3-1530.
(B) The convicted offender must be charged a ten dollar fee for the
provision of a copy of the crime incident report to the victim. The
Department of Probation, Parole, and Pardon Services is responsible
for collecting and distributing this money to the appropriate law
enforcement agency."
SECTION 2. Section 17-25-322 of the 1976 Code, as added by
Act 140 of 1993, is amended to read:
"Section 17-25-322. (A) When a defendant is convicted of
a crime which has resulted in pecuniary damages or loss to a victim,
the court must hold a hearing to determine the amount of restitution
due the victim or victims of the defendant's criminal acts. The
restitution hearings must be held as a matter of course unless
the defendant in open court agrees to the amount due, and in addition
to any other sentence which it may impose, the court shall order the
defendant make restitution or otherwise compensate the victim
for any pecuniary damages. The defendant, the victim or victims, or
their representatives or the victim's legal representative as well as the
Attorney General and the solicitor have the right to be present
and be heard upon the issue of restitution at any of these hearings.
(B) In determining the manner, method, or amount of restitution to
be ordered, the court may take into consideration the following:
(1) the financial resources of the defendant and the victim and the
burden that the manner or method of restitution will impose upon the
victim or the defendant;
(2) the ability of the defendant to pay restitution on an
installment basis or on other conditions to be fixed by the court;
(3) the anticipated rehabilitative effect on the defendant regarding
the manner of restitution or the method of payment;
(4) any burden or hardship upon the victim as a direct or indirect
result of the defendant's criminal acts;
(5) the mental, physical, and financial well being of the victim.
(C) At the restitution hearings, the defendant, the victim, the
Attorney General, the solicitor, or other interested party may
object to the imposition, amount or distribution of restitution, or the
manner or method of them, and the court shall allow all of
these objections to be heard and preserved as a matter of record. The
court shall enter its order upon the record stating its findings and the
underlying facts and circumstances of them. The restitution order
shall specify a monthly payment schedule that will result in full
payment for both restitution and collection fees by the end of eighty
percent of the offender's supervision period. In the absence of a
monthly payment schedule, the Department of Probation, Parole, and
Pardon Services shall impose a payment schedule of equal monthly
payments that will result in full restitution and collections fee being
paid by the end of eighty percent of an offender's supervision period.
The department, through its agents, must initiate legal process to bring
every probationer, whose restitution is six months in arrears, back to
court, regardless of wilful failure to pay. The judge shall make an
order addressing the probationer's failure to pay.
(D) All restitution funds, excluding the twenty percent collection
fee, collected before or after the effective date of this section that
remain unclaimed by a crime victim for more than eighteen months
from the day of last payment received must be transferred to the South
Carolina Victims' Compensation Fund, notwithstanding the Uniform
Unclaimed Property Act of 1981.
(E) An offender may not be granted a pardon until the
restitution and collection fees required by the restitution order have
been paid in full."
SECTION 3. Section 17-25-323 of the 1976 Code, as added by
Act 140 of 1993, is amended to read:
"Section 17-25-323. (A) The trial court retains jurisdiction
of the case for purpose of modifying the manner in which
court-ordered payments are made until paid in full, or until the
defendant's active sentence and probation or parole, if any,
expires.
(B) When a defendant has been placed on probation by the court or
parole by the Board of Probation, Parole, and Pardon
Services, and ordered to make restitution, and the defendant is in
default in the payment of them or of any installment or of any
criminal fines, surcharges, assessments, costs, and fees ordered, the
court, before the defendant completes his period of probation or
parole, on motion of the victim or the victim's legal representative,
the Attorney General, the solicitor, or a probation and parole
agent, or upon its own motion, must hold a hearing to require the
defendant to show cause why his default should not be treated as a
civil judgment and a judgment lien attached. The court must enter (1)
judgment in favor of the State for the unpaid balance, if any, of any
fines, costs, fees, surcharges, or assessments imposed; and (2)
judgment in favor of each person entitled to restitution for the unpaid
balance if any restitution ordered plus reasonable attorney's fees and
cost ordered by the court.
(C) The judgments may be enforced as any a civil
judgment.
(D) A judgment issued pursuant to this section has all the
force and effect of a final judgment and, as such, may be
enforced by the judgment creditor in the same manner as any other
civil judgment; with enforcement to take place in court
of common pleas.
(E) The clerk of court must enter any a judgment
issued pursuant to this section in the civil judgment records of the
court. No A judgment issued pursuant to this section
is not effective until entry is made in the civil judgment
records of the court as required under this subsection.
(F) Upon full satisfaction of any a judgment entered
under this section, the judgment creditor must record such
the satisfaction on the margin of the copy of the judgment on
file in the civil judgment records of the court."
SECTION 4. Section 17-25-326 of the 1976 Code, as added by
Act 140 of 1993, is amended to read:
"Section 17-25-326. Any court order issued pursuant to the
provisions of this article may be altered, modified, or rescinded upon
the filing of a petition by the defendant, Attorney General,
solicitor, or the victim for good and sufficient cause shown by a
preponderance of the evidence."
SECTION 5. The 1976 Code is amended by adding:
"Section 24-21-490. (A) The Department of Probation,
Parole, and Pardon Services shall have the responsibility for collecting
and distributing restitution on a monthly basis from all offenders under
probationary and intensive probationary supervision.
(B) Notwithstanding Section 14-17-725, the Department of
Probation, Parole, and Pardon Services shall assess a collection fee of
twenty percent of each restitution program and deposit this collection
fee into a separate account. The monies in this account must not be
used until specifically authorized by law. The department shall
maintain individual restitution accounts which reflect each transaction
and the amount paid, the collection fee, and the unpaid balance of the
account. A summary of these accounts must be reported to the
Governor's Office, the President of the Senate, the Speaker of the
House, the Chairman of the House Judiciary Committee, and the
Chairman of the Senate Corrections and Penology Committee every
six months following the enactment of this section."
SECTION 6. Section 16-3-1110 of the 1976 Code, as last amended
by Act 181 of 1993, is further amended by adding at the end:
"(12)(a) `Restitution' means payment for all injuries, specific
losses, and expenses sustained by a crime victim resulting from an
offender's criminal conduct. It includes, but is not limited to:
(i) medical and psychological counseling expenses;
(ii) specific damages and economic losses;
(iii) funeral expenses and related costs;
(iv) vehicle impoundment fees;
(v) child care costs; and
(vi) transportation related to a victim's participation in the
criminal justice process.
Restitution does not include awards for pain and suffering, wrongful
death, emotional distress, or loss of consortium.
Restitution orders do not limit any civil claims a crime victim may
file.
Notwithstanding any other provision of law, the applicable statute
of limitations for a crime victim, who has a cause of action against an
incarcerated offender based upon the incident which made the person
a victim, is tolled and does not expire until three years after the
offender's release from the sentence including probation and parole
time. However, this provision shall not shorten any other tolling
period of the statute of limitations which may exist for the crime
victim."
SECTION 7. The 1976 Code is amended by adding:
"Section 17-25-324. (A) Secondary victims and
third-party payees, excluding the offender's insurer, may receive
restitution as determined by the court. The Department of Probation,
Parole, and Pardon Services shall ensure that a primary victim shall
receive his portion of a restitution order before any of the offender's
payments are credited to a secondary victim or a third party payee, or
both.
(B) The Department of Probation, Parole, and Pardon Services
shall report to the Governor's Office, the President of the Senate, the
Speaker of the House, the Chairman of the House Judiciary
Committee, and the Chairman of the Senate Corrections and Penology
Committee by the first day of the 1997 Legislative Session detailed
recommendations for collection and distribution of restitution and
issues relating to indigent offenders and use of civil remedies.
(C) The Department of Probation, Parole, and Pardon Services
must maintain a minimum of twelve restitution center beds, or may
contract at other appropriate residential facilities, for every two
thousand five hundred offenders supervised by the department."
SECTION 8. This act takes effect on January 1, 1997, and applies
to all persons sentenced on or after April 1, 1997, except that the
provisions contained in Section 17-25-324(C) take effect on January
1, 1997.
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