Current Status Bill Number:
1293Ratification Number: 462Act Number: 437Type of Legislation: General Bill GBIntroducing Body: SenateIntroduced Date: 19960326Primary Sponsor: ThomasAll Sponsors: Thomas, Giese, Courson, Fair, Hayes, Jackson, Passailaigue, Russell and WilsonDrafted Document Number: dka\3634cm.96Companion Bill Number: 4657Date Bill Passed both Bodies: 19960529Date of Last Amendment: 19960529Governor's Action: SDate of Governor's Action: 19960604Subject: Crime victims report, restitution
Body Date Action Description Com Leg Involved ______ ________ _______________________________________ _______ ____________ ------ 19960709 Act No. A437 ------ 19960604 Signed by Governor ------ 19960530 Ratified R462 Senate 19960529 Ordered enrolled for ratification Senate 19960529 Conference Committee Report adopted 88 SCC House 19960528 Conference Committee Report adopted 98 HCC Senate 19960516 Conference powers granted, 88 SCC Thomas appointed Senators to Committee Jackson of Conference Martin House 19960515 Conference powers granted, 98 HCC Cotty appointed Reps. to Committee of Wofford Conference Govan House 19960515 Insists upon amendment Senate 19960514 Non-concurrence in House amendment House 19960508 Read third time, returned to Senate with amendment House 19960507 Amended, read second time House 19960507 Objection by Representative Knotts House 19960507 Reconsidered vote whereby read second time House 19960502 Amended, read second time House 19960430 Introduced, read first time, placed on Calendar without reference Senate 19960426 Read third time, sent to House Senate 19960425 Amended, read second time, unanimous consent for third reading on Friday, 19960426 Senate 19960424 Polled out of Committee: 03 SCP Favorable with amendment Senate 19960326 Introduced, read first time, 03 SCP referred to CommitteeView additional legislative information at the LPITS web site.
(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."
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."
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."
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. 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.
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.