H 3938 Session 112 (1997-1998)
H 3938 General Bill, By Limehouse, Altman, Bailey, Cobb-Hunter, Cooper,
J.G. Felder, Fleming, Govan, Hawkins, Howard, Inabinett, Klauber, Loftis, McKay,
Scott, Seithel, Sharpe and Whatley
A BILL TO AMEND SECTION 44-53-370, AS AMENDED, RELATING TO CERTAIN PROHIBITED
ACTS AND PENALTIES ASSOCIATED WITH THE MANUFACTURE, DISTRIBUTION, DELIVERY,
AND PURCHASE OF CONTROLLED SUBSTANCES, SO AS TO PROVIDE THAT IT IS UNLAWFUL TO
ADMINISTER, DISTRIBUTE, DISPENSE, OR DELIVER A CONTROLLED SUBSTANCE TO AN
INDIVIDUAL WITH THE INTENT TO COMMIT CERTAIN CRIMES.
04/10/97 House Introduced and read first time HJ-77
04/10/97 House Referred to Committee on Judiciary HJ-77
A BILL
TO AMEND SECTION 44-53-370, AS AMENDED, RELATING
TO CERTAIN PROHIBITED ACTS AND PENALTIES
ASSOCIATED WITH THE MANUFACTURE, DISTRIBUTION,
DELIVERY, AND PURCHASE OF CONTROLLED
SUBSTANCES, SO AS TO PROVIDE THAT IT IS UNLAWFUL
TO ADMINISTER, DISTRIBUTE, DISPENSE, OR DELIVER A
CONTROLLED SUBSTANCE TO AN INDIVIDUAL WITH THE
INTENT TO COMMIT CERTAIN CRIMES.
Be it enacted by the General Assembly of the State of South
Carolina:
SECTION 1. Section 44-53-370 of the 1976 Code, as last amended
by Section 17, Part I, Act 7 of 1995, is further amended to read:
"Section 44-53-370. (a) Except as authorized by this article it
shall be unlawful for any person:
(1) to manufacture, distribute, dispense, deliver, purchase, or
aid, abet, attempt, or conspire to manufacture, distribute, dispense,
deliver, or purchase, or possess with intent to manufacture, distribute,
dispense, deliver, or purchase a controlled substance;
(2) to create, distribute, dispense, deliver, or purchase, or aid,
abet, attempt, or conspire to create, distribute, dispense, deliver, or
purchase, or possess with intent to distribute, dispense, deliver, or
purchase a counterfeit substance.
(b) A person who violates subsection (a) with respect to:
(1) a controlled substance classified in Schedule I (b) and (c)
which is a narcotic drug or lysergic acid diethylamide (LSD) and in
Schedule II which is a narcotic drug is guilty of a felony and, upon
conviction, for a first offense must be imprisoned not more than
fifteen years or fined not more than twenty-five thousand dollars, or
both. For a second offense, or if, in the case of a first conviction of
violation of any provision of this subsection, the offender previously
has been convicted of a violation of the laws of the United States or
of any state, territory, or district relating to narcotic drugs, marijuana,
depressant, stimulant, or hallucinogenic drugs, the offender must be
imprisoned not less than five years nor more than thirty years, or
fined not more than fifty thousand dollars, or both. For a third or
subsequent offense, or if the offender previously has been convicted
two or more times in the aggregate of a violation of the laws of the
United States or of any state, territory, or district relating to narcotic
drugs, marijuana, depressant, stimulant, or hallucinogenic drugs, the
offender must be imprisoned not less than fifteen years nor more than
thirty years, or fined not more than fifty thousand dollars, or both.
Except in the case of conviction for a first offense, the sentence must
not be suspended and probation must not be granted;
(2) any other controlled substance classified in Schedule I, II,
or III is guilty of a felony and, upon conviction, for a first offense
must be imprisoned not more than five years or fined not more than
five thousand dollars, or both. For a second offense, or if, in the case
of a first conviction of violation of any provision of this subsection,
the offender previously has been convicted of a violation of the laws
of the United States or of any state, territory, or district relating to
narcotic drugs, marijuana, depressant, stimulant, or hallucinogenic
drugs, the offender is guilty of a felony and, upon conviction, must
be imprisoned not more than ten years or fined not more than ten
thousand dollars, or both. For a third or subsequent offense, or if the
offender previously has been convicted two or more times in the
aggregate of a violation of the laws of the United States or of any
state, territory, or district relating to narcotic drugs, marijuana,
depressant, stimulant, or hallucinogenic drugs, the offender is guilty
of a felony and, upon conviction, must be imprisoned not less than
five years nor more than twenty years, or fined not more than twenty
thousand dollars, or both. Except in the case of conviction for a first
offense, the sentence must not be suspended and probation must not
be granted;
(3) a substance classified in Schedule IV is guilty of a
misdemeanor and, upon conviction, for a first offense must be
imprisoned not more than three years or fined not more than three
thousand dollars, or both. In the case of second or subsequent
offenses, the person is guilty of a felony and, upon conviction, must
be imprisoned not more than five years or fined not more than six
thousand dollars, or both;
(4) a substance classified in Schedule V is guilty of a
misdemeanor and, upon conviction, for a first offense must be
imprisoned not more than one year or fined not more than one
thousand dollars, or both. In the case of second or subsequent
offenses, the sentence must be twice the first offense.
(c) It shall be unlawful for any person knowingly or intentionally
to possess a controlled substance unless the substance was obtained
directly from, or pursuant to a valid prescription or order of, a
practitioner while acting in the course of his professional practice, or
except as otherwise authorized by this article.
(d) A person who violates subsection (c) with respect to:
(1) a controlled substance classified in Schedule I (b) and (c)
which is a narcotic drug or lysergic acid diethylamide (LSD) and in
Schedule II which is a narcotic drug is guilty of a misdemeanor and,
upon conviction, must be imprisoned not more than two years or
fined not more than five thousand dollars, or both. For a second
offense, the offender is guilty of a felony and, upon conviction, must
be imprisoned not more than five years or fined not more than five
thousand dollars, or both. For a third or subsequent offense, the
offender is guilty of a felony and, upon conviction, must be
imprisoned not more than five years or fined not more than ten
thousand dollars, or both;
(2) any other controlled substance classified in Schedules I
through V is guilty of a misdemeanor and, upon conviction, must be
imprisoned not more than six months or fined not more than one
thousand dollars, or both. For a second or subsequent offense, the
offender is guilty of a misdemeanor and, upon conviction, must be
imprisoned not more than one year or fined not more than two
thousand dollars, or both, except as provided in subsection (d)(3);
(3) possession of more than ten grains of cocaine, one hundred
milligrams of alpha- or beta-eucaine, four grains of opium, four
grains of morphine, two grains of heroin, one hundred milligrams of
isonipecaine, twenty-eight grams or one ounce of marijuana, ten
grams of hashish or more than fifty micrograms of lysergic acid
diethylamide (LSD) or its compounds is prima facie guilty of
violation of subsection (a) of this section. A person who violates this
subsection with respect to twenty-eight grams or one ounce or less of
marijuana or ten grams or less of hashish is guilty of a misdemeanor
and, upon conviction, must be imprisoned not more than thirty days
or fined not less than one hundred dollars nor more than two hundred
dollars. Conditional discharge may be granted in accordance with the
provisions of Section 44-53-450 upon approval by the circuit solicitor
to the magistrate or municipal judge. As a part of a sentence, a
magistrate or municipal judge may require attendance at an approved
drug abuse program. Persons charged with the offense of possession
of marijuana or hashish under this item may be permitted to enter the
pretrial intervention program under the provisions of Act 360 of 1980
(Sections 17-22-10 through 17-22-160). For a second or subsequent
offense, the offender is guilty of a misdemeanor and, upon
conviction, must be imprisoned not more than one year or fined not
less than two hundred dollars nor more than one thousand dollars, or
both.
When a person is charged under this subsection for possession of
controlled substances, bail shall not exceed the amount of the fine
and the assessment provided pursuant to Section 14-1-206, 14-1-207,
or 14-1-208, whichever is applicable. A person charged under this
item for a first offense for possession of controlled substances may
forfeit bail by nonappearance. Upon forfeiture in general sessions
court, the fine portion of the bail must be distributed as provided in
Section 14-1-205. The assessment portion of the bail must be
distributed as provided in Section 14-1-206, 14-1-207, or 14-1-208,
whichever is applicable.
(e) Any person who knowingly sells, manufactures, cultivates,
delivers, purchases, or brings into this State, or who provides
financial assistance or otherwise aids, abets, attempts, or conspires
to sell, manufacture, cultivate, deliver, purchase, or bring into this
State, or who is knowingly in actual or constructive possession or
who knowingly attempts to become in actual or constructive
possession of:
(1) ten pounds or more of marijuana is guilty of a felony which
is known as "trafficking in marijuana" and, upon
conviction, must be punished as follows if the quantity involved is:
(a) ten pounds or more, but less than one hundred pounds:
1. for a first offense, a term of imprisonment of not less
than one year nor more than ten years, no part of which may be
suspended nor probation granted, and a fine of ten thousand dollars;
2. for a second offense, a term of imprisonment of not
less than five years nor more than twenty years, no part of which may
be suspended nor probation granted, and a fine of fifteen thousand
dollars;
3. for a third or subsequent offense, a mandatory term of
imprisonment of twenty-five years, no part of which may be
suspended nor probation granted, and a fine of twenty-five thousand
dollars;
(b) one hundred pounds or more, but less than two thousand
pounds, or one hundred to one thousand marijuana plants regardless
of weight, a mandatory term of imprisonment of twenty-five years,
no part of which may be suspended nor probation granted, and a fine
of twenty-five thousand dollars;
(c) two thousand pounds or more, but less than ten thousand
pounds, or more than one thousand marijuana plants, but less than
ten thousand marijuana plants regardless of weight, a mandatory term
of imprisonment of twenty-five years, no part of which may be
suspended nor probation granted, and a fine of fifty thousand dollars;
(d) ten thousand pounds or more, or ten thousand marijuana
plants, or more than ten thousand marijuana plants regardless of
weight, a term of imprisonment of not less than twenty-five years nor
more than thirty years with a mandatory minimum term of
imprisonment of twenty-five years, no part of which may be
suspended nor probation granted, and a fine of two hundred thousand
dollars;
(2) ten grams or more of cocaine or any mixtures containing
cocaine, as provided in Section 44-53-210(b)(4), is guilty of a felony
which is known as "trafficking in cocaine" and, upon
conviction, must be punished as follows if the quantity involved is:
(a) ten grams or more, but less than twenty-eight grams:
1. for a first offense, a term of imprisonment of not less
than three years nor more than ten years, no part of which may be
suspended nor probation granted, and a fine of twenty-five thousand
dollars;
2. for a second offense, a term of imprisonment of not less
than five years nor more than thirty years, no part of which may be
suspended nor probation granted, and a fine of fifty thousand dollars;
3. for a third or subsequent offense, a mandatory
minimum term of imprisonment of not less than twenty-five years nor
more than thirty years, no part of which may be suspended nor
probation granted, and a fine of fifty thousand dollars;
(b) twenty-eight grams or more, but less than one hundred
grams:
1. for a first offense, a term of imprisonment of not less
than seven years nor more than twenty-five years, no part of which
may be suspended nor probation granted, and a fine of fifty thousand
dollars;
2. for a second offense, a term of imprisonment of not less
than seven years nor more than thirty years, no part of which may be
suspended nor probation granted, and a fine of fifty thousand dollars;
3. for a third or subsequent offense, a mandatory
minimum term of imprisonment of not less than twenty-five years
and not more than thirty years, no part of which may be suspended
nor probation granted, and a fine of fifty thousand dollars;
(c) one hundred grams or more, but less than two hundred
grams, a mandatory term of imprisonment of twenty-five years, no
part of which may be suspended nor probation granted, and a fine of
fifty thousand dollars;
(d) two hundred grams or more, but less than four hundred
grams, a mandatory term of imprisonment of twenty-five years, no
part of which may be suspended nor probation granted, and a fine of
one hundred thousand dollars;
(e) four hundred grams or more, a term of imprisonment of
not less than twenty-five years nor more than thirty years with a
mandatory minimum term of imprisonment of twenty-five years, no
part of which may be suspended nor probation granted, and a fine of
two hundred thousand dollars;
(3) four grams or more of any morphine, opium, salt, isomer,
or salt of an isomer thereof, including heroin, as described in Section
44-53-190 or 44-53-210, or four grams or more of any mixture
containing any of these substances, is guilty of a felony which is
known as "trafficking in illegal drugs" and, upon
conviction, must be punished as follows if the quantity involved is:
(a) four grams or more, but less than fourteen grams:
1. for a first offense, a term of imprisonment of not less
than seven years nor more than twenty-five years, no part of which
may be suspended nor probation granted, and a fine of fifty thousand
dollars;
2. for a second or subsequent offense, a mandatory
minimum term of imprisonment of twenty-five years, no part of
which may be suspended nor probation granted, and a fine of one
hundred thousand dollars;
(b) fourteen grams or more but less than twenty-eight grams,
a mandatory term of imprisonment of twenty-five years, no part of
which may be suspended nor probation granted, and a fine of two
hundred thousand dollars;
(c) twenty-eight grams or more, a mandatory term of
imprisonment of not less than twenty-five years nor more than forty
years, no part of which may be suspended nor probation granted, and
a fine of two hundred thousand dollars;
(4) fifteen grams or more of methaqualone is guilty of a felony
which is known as "trafficking in methaqualone" and,
upon conviction, must be punished as follows if the quantity involved
is:
(a) fifteen grams but less than one hundred fifty grams:
1. for a first offense, a term of imprisonment of not less
than one year nor more than ten years, no part of which may be
suspended nor probation granted, and a fine of ten thousand dollars;
2. for a second or subsequent offense, a mandatory term
of imprisonment of twenty-five years, no part of which may be
suspended nor probation granted, and a fine of twenty-five thousand
dollars;
(b) one hundred fifty grams but less than fifteen hundred
grams, a mandatory term of imprisonment of twenty-five years, no
part of which may be suspended nor probation granted, and a fine of
twenty-five thousand dollars;
(c) fifteen hundred grams but less than fifteen kilograms, a
mandatory term of imprisonment of twenty-five years, no part of
which may be suspended nor probation granted, and a fine of fifty
thousand dollars;
(d) fifteen kilograms or more, a term of imprisonment of not
less than twenty-five years nor more than thirty years with a
mandatory minimum term of imprisonment of twenty-five years, no
part of which may be suspended nor probation granted, and a fine of
two hundred thousand dollars.
(5) one hundred tablets, capsules, dosage units, or the
equivalent quantity, or more of lysergic acid diethylamide (LSD) is
guilty of a felony which is known as "trafficking in LSD"
and, upon conviction, must be punished as follows if the quantity
involved is:
(a) one hundred dosage units or the equivalent quantity, or
more, but less than five hundred dosage units or the equivalent
quantity:
1. for a first offense, a term of imprisonment of not less
than three years nor more than ten years, no part of which may be
suspended nor probation granted, and a fine of twenty thousand
dollars;
2. for a second offense, a term of imprisonment of not less
than five years nor more than thirty years, no part of which may be
suspended or probation granted, and a fine of forty thousand dollars;
3. for a third or subsequent offense, a mandatory
minimum term of imprisonment of not less than twenty-five years nor
more than thirty years, no part of which may be suspended nor
probation granted, and a fine of fifty thousand dollars;
(b) five hundred dosage units or the equivalent quantity, or
more, but less than one thousand dosage units or the equivalent
quantity:
1. for a first offense, a term of imprisonment of not less
than seven years nor more than twenty-five years, no part of which
may be suspended nor probation granted, and a fine of fifty thousand
dollars;
2. for a second offense, a term of imprisonment of not less
than seven years nor more than thirty years, no part of which may be
suspended nor probation granted, and a fine of fifty thousand dollars;
3. for a third or subsequent offense, a mandatory
minimum term of imprisonment of not less than twenty-five years
and not more than thirty years, no part of which may be suspended
nor probation granted, and a fine of fifty thousand dollars;
(c) one thousand dosage units or the equivalent quantity, or
more, a mandatory term of imprisonment of twenty-five years, no
part of which may be suspended nor probation granted, and a fine of
one hundred thousand dollars.
(f) It is unlawful for a person to administer, distribute, dispense,
deliver, or aid, abet, attempt, or conspire to administer, distribute,
dispense, or deliver a controlled substance to an individual with the
intent to commit one of the following crimes against that individual:
(1) kidnapping (Section 16-3-910);
(2) criminal sexual conduct in the first, second, and third degree
(Sections 16-3-652, 16-3-653, and 16-3-654);
(3) criminal sexual conduct with a minor in the first and second
degree (Section 16-3-655);
(4) criminal sexual conduct where the victim is legal spouse
(Section 16-3-658);
(5) spousal sexual battery (Section 16-3-615);
(6) engaging a child for a sexual performance (Section
16-3-810);
(7) committing a lewd act upon child under sixteen (Section
16-15-140);
(8) petit larceny (Section 16-13-30(A)); or
(9) grand larceny (Section 16-13-30(B)).
(g) A person who violates subsection (f) with respect to:
(1) a controlled substance classified in Schedule I (b) or (c)
which is a narcotic drug or lysergic acid diethylamide (LSD), or in
Schedule II which is a narcotic drug is guilty of a felony and, upon
conviction, must be:
(i) for a first offense, imprisoned not less than three years
and not more than twenty years or fined not more than thirty
thousand dollars, or both;
(ii) for a second offense, or if in the case of a first conviction
of a violation of a provision of this subsection, the offender
previously has been convicted of a violation of the laws of the United
States or of any state, territory, or district relating to narcotic drugs,
marijuana, depressant, stimulant, or hallucinogenic drugs, imprisoned
not less than seven years nor more than thirty years, or fined not more
than fifty thousand dollars, or both;
(iii) for a third or subsequent offense, or if the offender
previously has been convicted two or more times in the aggregate of
a violation of the laws of the United States or of any state, territory,
or district relating to narcotic drugs, marijuana, depressant, stimulant,
or hallucinogenic drugs, imprisoned not less than fifteen years nor
more than thirty years, or fined not more than fifty thousand dollars,
or both.
Except in the case of conviction for a first offense, the sentence
must not be suspended and probation must not be granted;
(2) any other controlled substance is guilty of a felony and,
upon conviction, must be:
(a) for a first offense, imprisoned not more than fifteen years
or fined not more than twenty-five thousand dollars, or both;
(b) for a second offense, or if in the case of a first conviction
of a violation of any provision of this subsection, or the offender
previously has been convicted of a violation of the laws of the United
States or of any state, territory, or district relating to narcotic drugs,
marijuana, depressant, stimulant, or hallucinogenic drugs, imprisoned
not more than twenty years or fined not more than thirty thousand
dollars, or both;
(c) for a third or subsequent offense, or if the offender
previously has been convicted two or more times in the aggregate of
a violation of the laws of the United States or of any state, territory,
or district relating to narcotic drugs, marijuana, depressant, stimulant,
or hallucinogenic drugs, imprisoned not less than five years nor more
than twenty-five years, or fined not more than forty thousand dollars,
or both.
Except in the case of conviction for a first offense, the sentence
must not be suspended and probation must not be granted.
A person convicted and sentenced under this subsection to a
mandatory term of imprisonment of twenty-five years, a mandatory
minimum term of imprisonment of twenty-five years, or a mandatory
minimum term of imprisonment of not less than twenty-five years nor
more than thirty years is not eligible for parole, extended work
release, as provided in Section 24-13-610, or supervised furlough, as
provided in Section 24-13-710. Notwithstanding Section 44-53-420,
a person convicted of conspiracy pursuant to this subsection must be
sentenced as provided in this section with a full sentence or
punishment and not one-half of the sentence or punishment
prescribed for the offense.
The weight of any controlled substance in this subsection includes
the substance in pure form or any compound or mixture of the
substance.
The offense of possession with intent to distribute described in
Section 44-53-370(a) is a lesser included offense to the offenses of
trafficking based upon possession described in this subsection."
SECTION 2. This act takes effect upon approval by the Governor.
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