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4625Type of Legislation: General Bill GBIntroducing Body: HouseIntroduced Date: 20000216Primary Sponsor: FlemingAll Sponsors: Fleming, Altman, Barfield, Davenport, Gilham, Klauber, Leach, Littlejohn, Rice, Rodgers, Sandifer, Simrill, Stille, Taylor, Webb, Whatley and WilderDrafted Document Number: l:\council\bills\skb\18173som00.docResiding Body: HouseCurrent Committee: Judiciary Committee 25 HJSubject: No Profit From Crime Act, Courts, Judgments, Crimes and Offenses, recovery of profits from commission of crimeHistory Body Date Action Description Com Leg Involved ______ ________ ______________________________________ _______ ____________ House 20000216 Introduced, read first time, 25 HJ referred to Committee Versions of This Bill
TO AMEND CHAPTER 25, TITLE 17, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO JUDGMENT AGAINST PERSONS CONVICTED OF CRIME, BY ADDING ARTICLE 6 SO AS TO ENACT THE "NO PROFIT FROM CRIME ACT" WHICH SHALL PROVIDE PROCEDURES FOR THE RECOVERY OF PROFITS GENERATED FROM THE COMMISSION OF A CRIME BY THE OFFENDER OR THE LAW ENFORCEMENT OFFICIAL WHO INVESTIGATED OR PROSECUTED THE CRIME IN QUESTION, AND TO PROVIDE PROCEDURES FOR THE PROFITS TO BE DIVIDED AMONG ELIGIBLE PERSONS OR BY THE STATE OFFICE OF VICTIM ASSISTANCE; TO REPEAL SECTIONS 15-59-40 THROUGH 15-59-80, RELATING TO MONIES PAID INTO COURT; AND TO PROVIDE THIS ACT APPLIES TO THE RECOVERY OF PROFITS FROM CRIMES COMMITTED SINCE JANUARY 1, 1992.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Chapter 25, Title 17 of the 1976 Code is amended by adding:
Section 17-25-600. This article may be known as the 'No Profit From Crime Act'.
Section 17-25-610. As used in this article:
(1) 'Convicted' includes any conviction by entry of a plea of guilty or nolo contendere, conviction after trial, a finding of guilty but mentally ill, or a finding of not guilty by reason of insanity.
(2) 'Eligible person' means:
(a) a victim of the particular crime in question who has suffered direct or threatened physical, psychological, or financial harm as a result of the commission of the particular crime;
(b) a victim's spouse;
(c) a victim's parent;
(d) a victim's child;
(e) a spouse, parent, child, or lawful representative of a victim who is:
(ii) a minor;
(iii) incompetent; or
(iv) physically or psychologically incapacitated; or
(f) a person dependent for principal support on the deceased victim of the crime.
'Eligible person' does not include the offender criminally responsible for the crime in question or a person aiding or abetting the offender criminally responsible.
(3) 'Law enforcement official' means a person defined in Section 23-6-400(D)(1) who:
(a) has been certified as qualified by the Department of Public Safety pursuant to Article 9, Chapter 6 of Title 23;
(b) has been an investigator or prosecutor of the particular crime in question; and
(c) has received or contracted to receive profits from that crime.
(4) 'Offender' means the person convicted of the particular crime in question.
(5) 'Office' means State Office of Victim Assistance in the office of the Governor.
(6) 'Profit from a crime' includes any of the following:
(a) property obtained through or income generated from the commission of a crime for which the offender was convicted or which the law enforcement official investigated or prosecuted;
(b) property obtained or income generated from the sale, conversion, or exchange of proceeds of a crime for which the offender was convicted or which the law enforcement official investigated or prosecuted, including gain realized by the sale, conversion, or exchange; or
(c) property which the offender or law enforcement official obtained or income generated as a result of having committed the crime for which the offender was convicted or which the law enforcement official investigated or prosecuted, including assets obtained through the unique knowledge obtained during the commission of or in preparation for the commission of the crime, as well as any property obtained by or income generated from the sale, conversion, or exchange of that property and any gain realized by that sale, conversion, or exchange.
Section 17-25-620. If an offender has been convicted of a crime, every person who knowingly contracts for, pays, or agrees to pay any profit from a crime to that offender or to the law enforcement official shall give written notice to the office of the payment or the obligation to pay and a copy of the contract between the offender or law enforcement official and contracting party as soon as practical after discovering that the payment or intended payment is a profit from a crime. The office, upon receiving notice of the contract, agreement to pay, or payment of profits from a crime, shall request from all agencies with the duty to notify crime victims pursuant to Article 15, Chapter 3 of Title 16, the name and last known address of any eligible person who is a victim of the offender of the crime in question. It is the duty of the office to notify all known eligible persons at their last known address of the existence of profits.
Section 17-25-630. (A) Notwithstanding any other provision of law or rule of civil procedure, an eligible person has the right to bring a civil action in a court of competent jurisdiction to recover money damages within three years of the discovery of any profits from the crime from:
(1) an offender convicted of a crime;
(2) the legal representative of that offender; or
(3) the law enforcement official who investigated or prosecuted the crime if the official had contracted to receive any profits from the crime. Damages awarded in this action are recoverable only up to the value of the profits from the crime.
(B) If an action is filed under this article after the expiration of all other applicable statutes of limitation, any other eligible person must file an action for damages as a result of the crime within three years of:
(1) the actual discovery of profits from the crime; or
(2) actual notice received from or notice published by the office of the discovery of profits, whichever is later.
(C) If profits from a crime remain after the payment of all claims made under this article, the office has the right to bring an action within two years in a court of competent jurisdiction to recover payments made by the office pursuant to Article 13, Chapter 3 of Title 16 and expenses incurred by the office pursuant to Article 13, 14, or 15 of Chapter 3 of Title 16 or Section 24 of Article 1 of the State Constitution with regard to the crime or the offender convicted of the crime in question.
Section 17-25-640. (A) Upon filing an action pursuant to Section 17-25-630, the eligible person shall give notice to the office by delivering or mailing a copy of the complaint. The eligible person may, prior to filing the action, notify the office of his intent to file an action in order to allow the office to apply for other appropriate remedies which are authorized prior to the commencement of an action.
(B) The office may act on behalf of all eligible persons and may apply for any remedies available to an eligible person bringing an action under Section 17-25-630. These remedies include the right of attachment, injunction, receivership, and notice of pendency. On the motion for a particular remedy, the moving party shall state whether any other remedy has been sought in the same action against the same offender. The court may require the moving party to elect its remedy.
(C) Upon receipt of a copy of the complaint, the office shall:
(1) use certified mail, return receipt requested, to notify all other known eligible persons whose addresses are known, of the alleged existence of profits from a crime;
(2) publish, at least once a year for three years from the date it is initially notified by an eligible person under this section, a legal notice in newspapers of general circulation in the county where the crime was committed and in contiguous counties advising any eligible persons of the alleged existence of profits from a crime. The office may provide additional notice in its discretion; and
(3) avoid the wasting of the assets identified in the complaint as the newly discovered profits from a crime in any manner consistent with subsection (B).
Section 17-25-650. (A) A person who wilfully fails to submit to the office a copy of the contract described in Section 17-25-620 or who fails to pay to the office the monies or other consideration as required by this article is subject to a civil penalty of not less than ten thousand dollars and not more than an amount equal to three times the contract amount for each offense.
(B) If two or more persons are subject to the penalties provided in this section, the persons are jointly and severally liable for the payment of the penalty imposed.
(C) The office may bring an action to recover a civil penalty assessed under this action in a court of competent jurisdiction within six years after the cause of action accrues.
(D) Civil penalty money recovered under this section shall be paid to the office and used for the compensation of victims of crime.
Section 17-25-660. All state agencies, solicitors, and law enforcement agencies with knowledge of profits from a crime which an offender or law enforcement official has obtained or generated shall report this information to the office promptly.
Section 17-25-670. Action taken by an offender convicted of a crime or a law enforcement official, whether by execution of a power of attorney, creation of corporate entities, or otherwise, to defeat the purpose of this article is null and void as against the public policy of the State."
SECTION 2. Sections 15-59-40 through 15-59-80 of the 1976 Code are repealed.
SECTION 3. If any provision, word, phrase, or clause of this act or the application of it to a person or circumstance is held invalid, the invalidity does not affect the provisions, words, phrases, clauses, or applications of this act which can be given effect without the invalid provision, word, phrase, clause or application and, to this end, the provisions, words, phrases, and clauses of this act are declared to be severable.
SECTION 4. This act takes effect upon approval by the Governor and applies to all recovery of profits from offenders or law enforcement officials for crimes committed since January 1, 1992.
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