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Current Status Bill Number:View additional legislative information at the LPITS web site.3650 Type of Legislation:General Bill GB Introducing Body:House Introduced Date:20010228 Primary Sponsor:Wilkins All Sponsors:Wilkins, Jennings, Harrison, Knotts Drafted Document Number:l:\council\bills\skb\18233som01.doc Residing Body:House Current Committee:Judiciary Committee 25 HJ Subject:Advisory Sentencing Guidelines Act, Courts, Crimes and Offenses, Corrections Department, Probation, Parole, Pardon History Body Date Action Description Com Leg Involved ______ ________ ______________________________________ _______ ____________ House 20010306 Co-Sponsor added (Rule 5.2) by Rep. Knotts House 20010228 Introduced, read first time, 25 HJ referred to Committee Versions of This Bill
TO AMEND TITLE 16, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO CRIMES AND OFFENSES BY ADDING CHAPTER 2 SO AS TO PROVIDE FOR THE IMPLEMENTATION OF ADVISORY SENTENCING GUIDELINES FOR CERTAIN CRIMINAL OFFENSES, AND TO PROVIDE THESE GUIDELINES GO INTO EFFECT ONE YEAR AFTER THE APPROVAL OF THE GOVERNOR AND APPLY TO CRIMES COMMITTED ON OR AFTER THAT DATE.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Title 16 of the 1976 Code is amended by adding:
Section 16-2-10. (A) This chapter may be cited as the 'South Carolina Advisory Sentencing Guidelines Act'.
(B) Advisory Sentencing Guidelines apply equally to all offenders in the State without regard to race, gender, or economic status.
(C) This chapter applies to all criminal offenses in South Carolina punishable by maximum terms of imprisonment of one year or more except offenses specifically excluded in this act as provided in subsection (D).
(D) This chapter does not apply to offenses for which life imprisonment is ordered under Section 17-25-45, the offense of contempt of court under Section 14-5-320, the offenses of attempt and conspiracy under Section 44-53-420, crimes with maximum penalties of less than one year, sentences imposed as a result of technical probation revocations, offenses exempt from classification under Section 16-1-10(D) which receive the death penalty or life imprisonment, or sentences imposed in accordance with the Youthful Offender Act. However, this chapter applies to the above offenses for purposes of scoring the offender's prior record.
(E) Offenses exempt from classification under Section 16-1-10(D) which do not receive the death penalty or life imprisonment are treated, for purposes of sentencing guidelines, as Felony A offenses.
(F) Offenses with provisions for mandatory minimum sentences are subject to these guidelines. However, if the mandatory minimum sentence is greater than the guidelines' recommendation, the mandatory minimum sentence overrides the guidelines. If the guidelines' recommendation is greater, the guidelines control.
(G) Fines and restitution, as provided by law, may be added to a guidelines sentence.
(H) The South Carolina Sentencing Guidelines Commission shall promulgate regulations which provide the sentencing guidelines grid, a form to be used as a sentencing scoresheet, and a prior record form, and a departure form.
Section 16-2-20. As used in this chapter:
(1) 'Aggravating factors' means reasons justifying a sentence above the presumptive sentencing range for the offense. A sentence in the aggravating range is not considered a departure from guidelines.
(2) 'Commission' means the South Carolina Sentencing Guidelines Commission.
(3) 'Conviction' means a conviction, guilty plea, or plea of nolo contendere and includes being convicted of a violation of a law of another state or a city or county ordinance.
(4) 'Prior convictions' means felonies and misdemeanors, prior convictions not classified at the time of conviction, federal or out-of-state convictions, circuit, magistrate, and municipal court convictions, and juvenile adjudications if the offense would be a felony if committed by an adult. Prior convictions set aside or prior convictions of which the defendant was pardoned for reasons unrelated to innocence or legal error are calculated in the prior record score. Expunged convictions are not calculated.
(5) 'Prior record score' means the summation of points associated with previously imposed sentences.
(6) 'Departure' means a sentence which is either higher or lower than what the appropriate grid cell recommends. The departure form must be completed if a departure sentence is issued.
(7) 'Grid' means the sentencing guidelines matrix developed by the Sentencing Guidelines Commission for all offenses punishable by maximum terms of imprisonment of one year or more except offenses specifically excluded in Section 16-2-10(D).
(8) 'Grid cell' means a block on the grid formed by the intersection of the maximum penalty offense of the current convictions and all other current convictions added to the offender's prior record score.
(9) 'Mitigating factors' means reasons justifying a sentence below the presumptive sentencing range for the offense. A sentence in the mitigated range is not a departure from guidelines.
(10) 'Presumptive sentence' means the recommended sentence for the average case provided in a grid cell.
(11) 'Maximum penalty offense' means the current conviction offense with the greatest maximum possible sentence.
(12) 'Community punishment' means financial sanctions, probation, community punishment systems, nonresidential and residential intermediate sanctions, or other community-based disposition under the jurisdiction of the South Carolina Department of Probation, Parole, and Pardon Services.
(13) 'Community punishment systems' or 'CPS' means a community punishment with maximum level supervision in the community by the South Carolina Department of Probation, Parole, and Pardon Services with caseload sizes limited by South Carolina Department of Probation, Parole, and Pardon Services' policy.
(14) 'Residential and nonresidential intermediate sanctions' or 'IMS' means a community punishment which may include restitution centers, community control centers, and other residential community punishment facilities under the supervision of the South Carolina Department of Probation, Parole, and Pardon Services, and electronic monitoring, home detention, day reporting, intensive supervision, and other structured, intensive nonresidential programs under the supervision of the South Carolina Department of Probation, Parole, and Pardon Services.
(15) 'Sentencing scoresheet' means a form promulgated by the Sentencing Guidelines Commission and published in the State Register and the Code of Regulations used to determine a sentence under this chapter.
(16) 'Prior record form' means a form promulgated by the Sentencing Guidelines Commission and published in the State Register and the Code of Regulations used to determine a prior record score under this chapter.
(17) 'Departure from guidelines form' means a form promulgated by the Sentencing Guidelines Commission and published in the State Register and the Code of Regulations. The form should be completed when a sentence departs from the sentencing guidelines contained in this chapter.
(18) 'Technical probation revocation' means probation is revoked for anything other than the commission of a new offense.
Section 16-2-30. (A) The court should consider this chapter when determining the appropriate sentence for criminal offenses punishable by maximum terms of imprisonment of one year or more excluding those offenses specifically enumerated in Section 16-2-10(D).
(B) The advisory sentencing guidelines grid is two-dimensional. The maximum penalty offense is used to select the appropriate horizontal severity level. The current convictions score and the prior record score are combined to produce the total point score used to select the appropriate grid cell.
(C) There are three sentencing ranges within each grid cell:
(1) the presumptive range is designed for the average case with no extraordinary circumstances;
(2) the aggravating range is designed for cases in which a longer sentence is warranted based on the presence of aggravating factors pursuant to Section 16-2-70(A);
(3) the mitigating range is designed for cases in which a lesser sentence is warranted based on the presence of mitigating factors pursuant to Section 16-2-70(C).
(D) The court has discretion to determine whether a sentence in the aggravating or mitigating range is more appropriate for a particular offender.
(E) The presumptive sentence for an offender who falls below the bold dispositional line is a community punishment sentence. The presumptive sentence for an offender who falls above the bold dispositional line is imprisonment.
(F) The sentencing scoresheet and prior record form must be initially scored by the solicitor's office and completed in final form at the court's discretion. A copy of the sentencing scoresheet and prior record form must be provided to the defendant's attorney, or to the defendant if he is not represented by counsel, before submission to the court. The defendant must be put under oath to testify regarding the accuracy of his prior criminal record at the time of sentencing. The State may move to reconsider a defendant's sentence within one hundred eighty days of sentencing if it can be proven that the defendant wilfully provided false information regarding his prior criminal record to the court. False information provided by the defendant under oath may be considered an aggravating circumstance and may provide cause for deviating upward from the recommended sentencing guidelines sentence. Each solicitor's office in the State will be allocated sufficient resources from the General Assembly's annual appropriations act to comply with this act. The sentencing scoresheet and prior record form must be made a part of the record, and a copy must be sent by the solicitor to the South Carolina Sentencing Guidelines Commission within ninety days of sentencing.
(G) Split sentences are departures from the guidelines requiring completion of the departure from guidelines form. Suspended sentences are departures from the guidelines requiring completion of the departure from guidelines form, except when the recommended guidelines sentence range permits a community punishment under the following conditions:
(1) If the maximum penalty offense is classified as a Felony C offense and the guidelines permit a community punishment, the statutory maximum serves as the limit on the portion of the sentence which may be suspended.
(2) If the maximum penalty offense is classified as a Felony D offense and the guidelines permit a community punishment, the limit on the portion of the sentence which may be suspended is seven years.
(3) If the maximum penalty offense is classified as a Felony E offense and the guidelines permit a community punishment, the limit on the portion of the sentence which may be suspended is five years.
(4) If the maximum penalty offense is classified as a Felony F offense and the guidelines permit a community punishment, the limit on the portion of the sentence which may be suspended is three years.
(5) If the maximum penalty offense is classified as a Misdemeanor A, B, or C offense and the guidelines permit a community punishment, the statutory maximum serves as the limit on the portion of the sentence which may be suspended.
(H) It is in the discretion of the court to determine if a departure from the guidelines' recommendation is warranted. If the court determines that a sentence more severe or less severe than recommended in this chapter is warranted, the court may depart from the guidelines and sentence at its discretion. The court shall complete the departure from guidelines form. This form must be attached to the sentencing scoresheet and prior-record form, and a copy shall be sent to the South Carolina Sentencing Guidelines Commission within ninety days after a person has been sentenced, and the commission shall compile this data by county. The court, in its discretion, may depart from the guidelines in cases which include, but are not limited to, those in which the defendant provided substantial assistance to the State, when the defendant suffers from significantly reduced mental capacity, or when there is an early acceptance of responsibility by the defendant as set forth below.
If the defendant has provided substantial assistance in the investigation or prosecution of another person, the court may determine an appropriate reduction in the defendant's sentence by considering the following:
(1) evaluation of the significance and usefulness of the defendant's assistance, taking into consideration the state's evaluation of the assistance rendered;
(2) the truthfulness, completeness, and reliability of information provided by the defendant;
(3) the nature and extent of the defendant's assistance;
(4) an injury suffered or a danger or risk of injury to the defendant or his family resulting from the assistance;
(5) the timeliness of the defendant's assistance.
The court, on motion of the State or the defense, may reduce a sentence to reflect a defendant's subsequent substantial assistance in the investigation or prosecution of another person who has committed an offense. The reduction of the sentence pursuant to this section may be made at any time after the imposition of the sentence if it is based on information or evidence not known by the defendant at the time of sentencing. The motion for a reduction in sentence must be made within one year from the date of sentencing if the reduction of the sentence would be based on information or evidence known by the defendant at the time of sentencing.
The court, on a motion of the State, may reduce a sentence to reflect a defendant's early acceptance of responsibility that occurred within ninety days of the arrest or within a time frame set at the discretion of the solicitor.
If the defendant suffers from significantly reduced mental capacity, the court may determine an appropriate reduction in the defendant's sentence by considering whether the defendant committed a nonviolent offense while suffering from significantly reduced mental capacity not resulting from voluntary use of drugs or other intoxicants. A lower sentence may be warranted to reflect the extent the reduced mental capacity contributed to the commission of the offense.
(I) Unless specifically prohibited, a person who has been convicted of any criminal offense may be given a community punishment provided in this chapter if the class of the offense, current convictions, and prior record level authorizes a community punishment as a type of sentence disposition.
(J) The South Carolina Department of Probation, Parole, and Pardon Services must develop a plan to provide offender services regarding community punishment under this chapter. The programs designed to accommodate these offenders shall hold offenders accountable for making restitution, require compliance with the court's judgment, appropriately punish and rehabilitate offenders by directing them to specialized treatment or educational programs, and protect public safety. This plan must be submitted to the Speaker of the House and the Chairman of the Senate Judiciary Committee within one hundred eighty days after the effective date of this act.
(K) Community punishments available under this chapter include, but are not limited to:
(1) Residential Intermediate Sanctions or IMS which include restitution centers, community control centers, and other residential community punishment facilities under the supervision of the South Carolina Department of Probation, Parole, and Pardon Services;
(2) Nonresidential Intermediate Sanctions or IMS which include electronic monitoring, home detention, day reporting, intensive supervision, and any other structured, intensive nonresidential program under the supervision of the South Carolina Department of Probation, Parole, and Pardon Services;
(3) Community Punishment Systems or CPS which include community punishment with maximum level supervision in the community by the South Carolina Department of Probation, Parole, and Pardon Services with caseload sizes limited by South Carolina Department of Probation, Parole, and Pardon Services' policy;
(4) Probation pursuant to Title 24, Chapter 21, Article 5.
Section 16-2-40. To determine a guidelines sentence, the court must:
(1) determine the maximum penalty offense to select the appropriate horizontal severity level;
(2) determine the current convictions score pursuant to Section 16-2-60(A);
(3) determine the prior record score pursuant to Section 16-2-60(B);
(4) add the current convictions score to the prior record score to produce the total point score. Use the total point score to select the appropriate vertical point column;
(5) determine the intersection of the appropriate horizontal severity level and the appropriate vertical point column to produce the appropriate grid cell;
(6) determine if aggravating or mitigating factors, pursuant to Section 16-2-70, apply and select the appropriate sentencing range. All guidelines ranges are years of maximum confinement;
(7) select a sentence at any place within the appropriate sentencing range; and
(8) complete the departure from guidelines form if the sentence is outside of the appropriate grid cell's sentencing ranges.
Section 16-2-50. For purposes of sentencing, the 'South Carolina Sentencing Guidelines Grid', as promulgated by the Sentencing Guidelines Commission and published in the State Register and the Code of Regulations, applies to criminal offenses with maximum terms of imprisonment of one year or more, except those offenses specifically excluded from this chapter provided in Section 16-2-10(D), committed one year after this act's effective date.
Section 16-2-60. (A) The current convictions score for the purpose of Section 16-2-40 must be calculated pursuant to regulations promulgated by the Sentencing Guidelines Commission and published in the State Register and the Code of Regulations.
(B)(1) The prior record score for the purpose of Section 16-2-40 is calculated pursuant to regulations promulgated by the Sentencing Guidelines Commission and published in the State Register and the Code of Regulations.
(2) Federal or out-of-state convictions are scored for purposes of the prior record score.
(3) Circuit, magistrate, and municipal court convictions, and juvenile adjudications that would be felonies if committed by an adult are scored accordingly.
(4) A prior sentence of over one year imposed more than fifteen years before the defendant's current conviction is not scored unless the prior sentence extends into the current fifteen-year period. A prior sentence of one year or less imposed more than ten years before the defendant's current conviction is not scored.
Section 16-2-70. (A) When determining whether an aggravated sentence is warranted, the court may consider the following factors:
(1) The offense resulted in serious bodily injury to a victim.
(2) The victim was treated with particular cruelty for which the offender should be held responsible.
(3) The victim was particularly vulnerable due to age, infirmity, or reduced physical or mental capacity which was known or should have been known to the offender.
(4) The offense resulted in protracted mental or emotional distress to a victim.
(5) The defendant committed the offense while he was:
(a) on probation;
(b) a parolee;
(c) on work release;
(d) on furlough;
(e) an escapee;
(f) released on bond;
(g) under community supervision; or
(h) serving an active sentence.
(6) The defendant possessed a firearm, visibly displayed what appeared to be a firearm, visibly displayed a knife, or used an object capable of causing death or inflicting serious bodily injury during the commission of the offense.
(7) The defendant induced others to participate in the commission of the offense or occupied a position of leadership or dominance over other participants.
(8) The defendant attempted to obstruct justice by intimidating a witness or juror, destroying evidence, or otherwise hindering the enforcement of laws in the investigation, prosecution, or sentencing of the defendant's case.
(9) A defendant's refusal to assist authorities in the investigation of other persons should not be considered as an aggravating sentencing factor.
(B) An aggravated sentence generally should not be given if the aggravating circumstance is an element of the offense. Exceptions to this general rule are:
(1) the common law offense of assault and battery of a high and aggravated nature;
(2) lewd act on a minor (Section 16-15-140).
(C) When determining whether a mitigated sentence is warranted, the court may consider the following factors:
(1) The defendant is over sixty-five years of age.
(2) The defendant suffers from extraordinary physical impairments. Impairments do not include drug or alcohol problems.
(3) The victim was the aggressor in the incident or induced or facilitated its commission.
(4) The defendant played a minor role or passive role in the offense.
(5) The defendant clearly demonstrates a recognition and affirmative acceptance or personal responsibility for his conduct.
(6) The offense is indicative of aberrant behavior on behalf of the defendant.
(7) The defendant participated under circumstances of coercion or duress.
(D) Aggravating and mitigating factors provided in this section are examples of factors that the court may wish to consider when determining an appropriate sentence for an offender. The court, in its discretion, may determine the existence of these or other factors which may warrant a sentence in the aggravating or mitigating ranges.
Section 16-2-80. If the guidelines contained in this chapter are silent or vague, the sentencing judge may provide a reasonable interpretation."
SECTION 2. If a section, paragraph, provision, or portion of this act is held to be unconstitutional or invalid by a court of competent jurisdiction, this holding shall not affect the constitutionality or validity of the remaining portions of this act, the General Assembly hereby declares that the provisions of this act are severable from each other.
SECTION 3. All proceedings pending and all rights and liabilities existing, acquired, or incurred at the time this act takes effect are saved. Except as otherwise provided, the provisions of this act apply prospectively to crimes and offenses committed on or after the effective date of this act.
SECTION 4. This act takes effect one year after approval by the Governor and applies to all crimes committed on or after that date.
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