Current Status Bill Number:
4657Type of Legislation: General Bill GBIntroducing Body: HouseIntroduced Date: 19960222Primary Sponsor: HaskinsAll Sponsors: Haskins, Easterday, Rice, Knotts, Limehouse, Simrill, Cooper, Meacham, Herdklotz, Byrd, Loftis, Stille, Chamblee, Waldrop, Kelley, Vaughn, Law, Allison, Davenport, Wright and RobinsonDrafted Document Number: jic\5234cm.96Companion Bill Number: 1293, 1296Residing Body: SenateCurrent Committee: Judiciary Committee 11 SJDate of Last Amendment: 19960502Subject: Crime victims, accident report; restitution provisions
Body Date Action Description Com Leg Involved ______ ________ _______________________________________ _______ ____________ Senate 19960508 Introduced, read first time, 11 SJ referred to Committee House 19960507 Read third time, sent to Senate House 19960502 Amended, read second time House 19960501 Debate adjourned until Thursday, 19960502 House 19960424 Committee report: Favorable with 25 HJ amendment House 19960222 Introduced, read first time, 25 HJ referred to CommitteeView additional legislative information at the LPITS web site.
Indicates Matter Stricken
Indicates New Matter
May 2, 1996
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.
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
Personal Service & Employer
Operating Costs463,029 $403,000
Other ______________ _____________
TOTAL $1,605,690 $403,000
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:
with Operating Costs$446,282 $75,000
with Operating Costs318,163 90,000
with Operating Costs 141,014 33,000
with Operating Costs173,583 30,000
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.
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.
Michael L. Shealy
Office of State Budget
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.