S*0194(Rat #0195, Act #0140)  General Bill, By Hayes, Martin, Peeler, 
H.S. Stilwell, Waldrep and Wilson
 A Bill to amend the Code of Laws of South Carolina, 1976, by adding Sections
 17-25-322 through 17-25-326, so as to provide that when defendant is convicted
 of a crime which has resulted in pecuniary damages or loss, the court must
 hold a hearing to determine the amount of restitution due the victims of the
 defendant's criminal acts, provide that the hearings must be held as a matter
 of course unless the defendant agrees to the amount due, provides for the
 factors which the court must consider in determining restitution; provides
 that the court must retain jurisdiction of the case for the purpose of
 modifying the order until paid in full or until the defendant's sentence and
 probation and sentence, if any, expires, provides that when a defendant has
 been placed on probation and is in default of any fines, surcharges,
 assessments, costs, and fees ordered, the court, on motion of the victim, the
 solicitor, or a probation and parole agent, or upon its own motion, must hold
 a hearing for the defendant to show cause as to why his default would not be
 treated as a civil judgment and a judgment lien attached, provide that the
 court must enter judgment in favor of the state and in favor of the victim for
 any fines, costs, fees, and restitution for the unpaid balance, provide that
 judgments may be enforced as any civil judgment in the court of common pleas,
 require that the clerk of court enter any judgment issued pursuant to the
 provisions of Section 17-25-323 in the civil judgment records of the court,
 provide that no judgment is effective until entry is made and that the
 judgment creditor is required to record satisfaction of the judgment; provide
 a judgment and sentence of a court of general sessions in a criminal case
 against an individual may be enforced as a judgment is enforced in the court
 of common pleas in civil actions; and provide that any court order issued
 pursuant to the provisions of Article 3,Chapter 25, Title 17 may be altered,
 modified, or rescinded upon the filing of a petition by the defendant,
 solicitor, or the victim for good and sufficient cause shown by the
 preponderance of the evidence.-amended title

   01/13/93  Senate Introduced and read first time SJ-8
   01/13/93  Senate Referred to Committee on Judiciary SJ-8
   02/10/93  Senate Committee report: Favorable Judiciary SJ-10
   02/11/93  Senate Amended SJ-22
   02/11/93  Senate Read second time SJ-24
   02/11/93  Senate Ordered to third reading with notice of
                     amendments SJ-24
   02/17/93  Senate Read third time and sent to House SJ-22
   02/18/93  House  Introduced and read first time HJ-11
   02/18/93  House  Referred to Committee on Judiciary HJ-12
   05/25/93  House  Committee report: Favorable with amendment
                     Judiciary HJ-7
   05/27/93  House  Amended HJ-155
   05/27/93  House  Read second time HJ-157
   06/01/93  House  Read third time and returned to Senate with
                     amendments HJ-6
   06/01/93  Senate Concurred in House amendment and enrolled SJ-84
   06/10/93         Ratified R 195
   06/14/93         Signed By Governor
   06/14/93         Effective date 06/14/93
   07/19/93         Copies available

AN ACT TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING SECTIONS 17-25-322 THROUGH 17-25-326, SO AS TO PROVIDE THAT WHEN A DEFENDANT IS CONVICTED OF A CRIME WHICH HAS RESULTED IN PECUNIARY DAMAGES OR LOSS, THE COURT MUST HOLD A HEARING TO DETERMINE THE AMOUNT OF RESTITUTION DUE THE VICTIMS OF THE DEFENDANT'S CRIMINAL ACTS, PROVIDE THAT THE HEARINGS MUST BE HELD AS A MATTER OF COURSE UNLESS THE DEFENDANT AGREES TO THE AMOUNT DUE, PROVIDES FOR THE FACTORS WHICH THE COURT MUST CONSIDER IN DETERMINING RESTITUTION; PROVIDES THAT THE COURT MUST RETAIN JURISDICTION OF THE CASE FOR THE PURPOSE OF MODIFYING THE ORDER UNTIL PAID IN FULL OR UNTIL THE DEFENDANT'S SENTENCE AND PROBATION AND SENTENCE, IF ANY, EXPIRES, PROVIDES THAT WHEN A DEFENDANT HAS BEEN PLACED ON PROBATION AND IS IN DEFAULT OF ANY FINES, SURCHARGES, ASSESSMENTS, COSTS, AND FEES ORDERED, THE COURT, ON MOTION OF THE VICTIM, THE SOLICITOR, OR A PROBATION AND PAROLE AGENT, OR UPON ITS OWN MOTION, MUST HOLD A HEARING FOR THE DEFENDANT TO SHOW CAUSE AS TO WHY HIS DEFAULT WOULD NOT BE TREATED AS A CIVIL JUDGMENT AND A JUDGMENT LIEN ATTACHED, PROVIDE THAT THE COURT MUST ENTER JUDGMENT IN FAVOR OF THE STATE AND IN FAVOR OF THE VICTIM FOR ANY FINES, COSTS, FEES, AND RESTITUTION FOR THE UNPAID BALANCE, PROVIDE THAT JUDGMENTS MAY BE ENFORCED AS ANY CIVIL JUDGMENT IN THE COURT OF COMMON PLEAS, REQUIRE THAT THE CLERK OF COURT ENTER ANY JUDGMENT ISSUED PURSUANT TO THE PROVISIONS OF SECTION 17-25-323 IN THE CIVIL JUDGMENT RECORDS OF THE COURT, PROVIDE THAT NO JUDGMENT IS EFFECTIVE UNTIL ENTRY IS MADE AND THAT THE JUDGMENT CREDITOR IS REQUIRED TO RECORD SATISFACTION OF THE JUDGMENT; PROVIDE A JUDGMENT AND SENTENCE OF A COURT OF GENERAL SESSIONS IN A CRIMINAL CASE AGAINST AN INDIVIDUAL MAY BE ENFORCED AS A JUDGMENT IS ENFORCED IN THE COURT OF COMMON PLEAS IN CIVIL ACTIONS; AND PROVIDE THAT ANY COURT ORDER ISSUED PURSUANT TO THE PROVISIONS OF ARTICLE 3, CHAPTER 25, TITLE 17 MAY BE ALTERED, MODIFIED, OR RESCINDED UPON THE FILING OF A PETITION BY THE DEFENDANT, SOLICITOR, OR THE VICTIM FOR GOOD AND SUFFICIENT CAUSE SHOWN BY THE PREPONDERANCE OF THE EVIDENCE.

Be it enacted by the General Assembly of the State of South Carolina:

Court to determine restitution due

SECTION 1. The 1976 Code is amended by adding:

"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 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 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."

Court to retain jurisdiction

SECTION 2. The 1976 Code is amended by adding:

"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 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 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; enforcement to take place in court of common pleas.

(E) The clerk of court must enter any judgment issued pursuant to this section in the civil judgment records of the court. No judgment issued pursuant to this section is effective until entry is made in the civil judgment records of the court as required under this subsection.

(F) Upon full satisfaction of any judgment entered under this section, the judgment creditor must record such satisfaction on the margin of the copy of the judgment on file in the civil judgment records of the court."

Enforcement of judgment

SECTION 3. The 1976 Code is amended by adding:

"Section 17-25-325. The sentence and judgment of the court of general sessions in a criminal case against an individual may be enforced in the same manner by execution against the property of the defendant as is provided by law for enforcing the judgments of the courts of common pleas in civil actions. Before a general sessions court may enter a judgment against a defendant's property as authorized by this section, the judge must make findings of fact as to the amount of the judgment to be entered against the defendant. These findings must be supported by the preponderance of the relevant evidence as is offered by the parties."

Alteration of court order

SECTION 4. The 1976 Code is amended by adding:

"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, solicitor, or the victim for good and sufficient cause shown by a preponderance of the evidence."

Time effective

SECTION 5. This act takes effect upon approval by the Governor.

Approved the 14th day of June, 1993.