S*1293 Session 111 (1995-1996)
S*1293(Rat #0462, Act #0437 of 1996) General Bill, By Thomas, Courson, Fair,
Giese, Hayes, Jackson, Passailaigue, Russell and Wilson
Similar(S 1296, H 4657)
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 a
crime victim a copy of the crime incident report relating to his case and
certain other information; to amend Section 17-25-322, as amended, relating to
the payment of restitution to a crime victim by a person convicted of a crime,
so as to provide that the Attorney General has the right to be present and
heard at a restitution hearing, to provide that a monthly payment schedule
shall be imposed so that restitution may be collected, to provide for the
distribution of unclaimed restitution fund, and that an offender may not be
granted a pardon until certain requirements of the restitution order have been
fulfilled; to amend Section 17-25-323, as amended, relating to the enforcement
and execution of a judgment in a criminal case, so as to provide that the
Attorney General may make a motion to hold a hearing to require a defendant to
show cause why his default of court-ordered payments should not be treated as
a civil judgment and a judgment lien attached; to amend Section 17-25-326, as
amended, relating to the alteration, modification, or rescission of certain
judgments, and executions, so as to provide that the Attorney General may file
a petition to alter, modify, or rescind certain orders; by adding Section
24-21-490 so as to provide for the collection and distribution of restitution
from persons under probationary and intensive probationary supervision; to
amend Section 16-3-1110, as amended, relating to definitions relating to the
compensation of victims of crime, so as to provide a definition of
"restitution"; by adding Section 17-25-324 so as to provide for the payment of
restitution to certain secondary victi
03/26/96 Senate Introduced and read first time SJ-23
03/26/96 Senate Referred to Committee on Corrections and Penology SJ-23
04/24/96 Senate Polled favorable with amendment Corrections
Penology SJ-16
04/25/96 Senate Amended SJ-80
04/25/96 Senate Read second time SJ-80
04/25/96 Senate Unanimous consent for third reading on next
legislative day SJ-80
04/26/96 Senate Read third time and sent to House SJ-7
04/30/96 House Introduced, read first time, placed on calendar
without reference HJ-24
05/02/96 House Amended HJ-19
05/02/96 House Read second time HJ-23
05/07/96 House Reconsider vote whereby read second time HJ-23
05/07/96 House Objection by Rep. Knotts HJ-24
05/07/96 House Amended HJ-25
05/07/96 House Read second time HJ-25
05/08/96 House Read third time and returned to Senate with
amendments HJ-14
05/14/96 Senate Non-concurrence in House amendment SJ-57
05/15/96 House House insists upon amendment and conference
committee appointed Reps. Cotty, Wofford & Govan HJ-27
05/16/96 Senate Conference committee appointed Thomas, Jackson &
Martin SJ-8
05/28/96 House Conference report adopted HJ-41
05/29/96 Senate Conference report received and adopted SJ-54
05/29/96 Senate Ordered enrolled for ratification SJ-54
05/30/96 Ratified R 462
06/04/96 Signed By Governor
06/04/96 Effective date 01/01/97 and applies to all
persons sentenced on or after 4/1/97, except
that the provisions contained in Section
17-25-324(C) take effect 01/01/97
07/03/96 Copies available
07/03/96 Act No. 437
(A437, R462, S1293)
AN ACT TO AMEND THE CODE OF LAWS OF SOUTH
CAROLINA, 1976, BY ADDING SECTION 16-3-1535 SO AS TO
PROVIDE THAT LAW ENFORCEMENT AGENCIES SHALL
PROVIDE A CRIME VICTIM A COPY OF THE CRIME INCIDENT
REPORT RELATING TO HIS CASE AND CERTAIN OTHER
INFORMATION; TO AMEND SECTION 17-25-322, AS AMENDED,
RELATING TO THE PAYMENT OF RESTITUTION TO A CRIME
VICTIM BY A PERSON CONVICTED OF A CRIME, SO AS TO
PROVIDE THAT THE ATTORNEY GENERAL HAS THE RIGHT TO
BE PRESENT AND HEARD AT A RESTITUTION HEARING, TO
PROVIDE THAT A MONTHLY PAYMENT SCHEDULE SHALL BE
IMPOSED SO THAT RESTITUTION MAY BE COLLECTED, TO
PROVIDE FOR THE DISTRIBUTION OF UNCLAIMED
RESTITUTION FUND, AND THAT AN OFFENDER MAY NOT BE
GRANTED A PARDON UNTIL CERTAIN REQUIREMENTS OF THE
RESTITUTION ORDER HAVE BEEN FULFILLED; TO AMEND
SECTION 17-25-323, AS AMENDED, RELATING TO THE
ENFORCEMENT AND EXECUTION OF A JUDGMENT IN A
CRIMINAL CASE, SO AS TO PROVIDE THAT THE ATTORNEY
GENERAL MAY MAKE A MOTION TO HOLD A HEARING TO
REQUIRE A DEFENDANT TO SHOW CAUSE WHY HIS DEFAULT
OF COURT-ORDERED PAYMENTS SHOULD NOT BE TREATED
AS A CIVIL JUDGMENT AND A JUDGMENT LIEN ATTACHED;
TO AMEND SECTION 17-25-326, AS AMENDED, RELATING TO
THE ALTERATION, MODIFICATION, OR RESCISSION OF
CERTAIN JUDGMENTS AND EXECUTIONS, SO AS TO PROVIDE
THAT THE ATTORNEY GENERAL MAY FILE A PETITION TO
ALTER, MODIFY, OR RESCIND CERTAIN ORDERS; BY ADDING
SECTION 24-21-490 SO AS TO PROVIDE FOR THE COLLECTION
AND DISTRIBUTION OF RESTITUTION FROM PERSONS UNDER
PROBATIONARY AND INTENSIVE PROBATIONARY
SUPERVISION; TO AMEND SECTION 16-3-1110, AS AMENDED,
RELATING TO DEFINITIONS RELATING TO THE
COMPENSATION OF VICTIMS OF CRIME, SO AS TO PROVIDE A
DEFINITION OF "RESTITUTION"; BY ADDING
SECTION 17-25-324 SO AS TO PROVIDE FOR THE PAYMENT OF
RESTITUTION TO CERTAIN SECONDARY VICTIMS AND
THIRD-PARTY PAYEES, TO REQUIRE THE DEPARTMENT OF
PROBATION, PAROLE, AND PARDON SERVICES TO PREPARE
AND PROVIDE A REPORT CONTAINING RECOMMENDATIONS
FOR COLLECTION AND DISTRIBUTION OF RESTITUTION AND
ISSUES RELATING TO INDIGENT OFFENDERS AND THE USE OF
CIVIL REMEDIES, AND TO PROVIDE THAT A MINIMUM
NUMBER OF RESTITUTION BEDS MUST BE
MAINTAINED.
Be it enacted by the General Assembly of the State of South
Carolina:
Crime incident report
SECTION 1. The 1976 Code is amended by adding:
"Section 16-3-1535. 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 list the local crime
victim assistance providers. The statutory rights contained in this
document shall include all rights contained in Section
16-3-1530."
Restitution hearing
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 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 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."
Enforcement and execution of a judgment
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 the 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 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 a civil judgment.
(D) A judgment issued pursuant to this section has the force and effect
of a final judgment and 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 a judgment issued pursuant to this
section in the civil judgment records of the court. 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 a judgment entered under this section, the
judgment creditor must record the satisfaction on the margin of the copy
of the judgment on file in the civil judgment records of the
court."
Court order
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."
Collection and distribution of restitution
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."
Definition
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."
Restitution
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."
Implementation
SECTION 8. Implementation of the changes in law effectuated by this
act to Sections 16-3-1110, 16-3-1535, 17-25-322, 17-25-324, and 24-21-490 of the 1976 Code and the requirements thereunder or in any new
provisions of law contained herein which would necessitate funding are
contingent upon appropriations of sufficient funding by the General
Assembly. Nothing herein shall relieve the various agencies and
authorities within the offices of the respective clerks of court or judicial,
correctional, and parole systems of this State from continuing to meet,
enforce, and address those provisions of law related to restitution in
effect prior to the enactment hereof.
Time effective
SECTION 9. 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.
Approved the 4th day of June, 1996. |