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4431Ratification Number: 470Act Number: 329Type of Legislation: General Bill GBIntroducing Body: HouseIntroduced Date: 20020108Primary Sponsor: RodgersAll Sponsors: Rodgers, Simrill, Meacham-Richardson, GilhamDrafted Document Number: l:\council\bills\nbd\11041ac02.docDate Bill Passed both Bodies: 20020606Date of Last Amendment: 20020605Governor's Action: SDate of Governor's Action: 20020618Subject: Uniform court fee increases; domestic abuse, petitions for orders of protection, action may be brought in county in which alleged abuse occurred, criminal domestic violence arrest proceduresHistory Body Date Action Description Com Leg Involved ______ ________ ______________________________________ _______ ____________ ------ 20020708 Act No. A329 ------ 20020618 Signed by Governor ------ 20020606 Ratified R470 House 20020606 Concurred in Senate amendment, enrolled for ratification Senate 20020605 Amended, read third time, returned to House with amendment Senate 20020528 Read second time ------ 20020528 Scrivener's error corrected Senate 20020523 Committee amendment adopted Senate 20020522 Committee report: Favorable with 11 SJ amendment Senate 20020212 Introduced, read first time, 11 SJ referred to Committee House 20020207 Read third time, sent to Senate House 20020206 Amended, read second time ------ 20020131 Scrivener's error corrected House 20020130 Committee report: Favorable with 25 HJ amendment House 20020109 Co-Sponsor added (Rule 5.2) by Rep. Gilham House 20020108 Introduced, read first time, 25 HJ referred to Committee House 20011219 Prefiled, referred to Committee 25 HJ Versions of This Bill Revised on January 30, 2002 - Word format Revised on January 31, 2002 - Word format Revised on February 6, 2002 - Word format Revised on May 22, 2002 - Word format Revised on May 23, 2002 - Word format Revised on May 28, 2002 - Word format Revised on June 5, 2002 - Word format
(A329, R470, H4431)
AN ACT TO AMEND SECTION 20-4-30, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO FAMILY COURT JURISDICTION AND VENUE FOR ACTIONS SEEKING AN ORDER OF PROTECTION FROM DOMESTIC ABUSE, SO AS TO REVISE WHERE AN ACTION MAY BE BROUGHT TO INCLUDE THE COUNTY IN WHICH THE ALLEGED ACT OF ABUSE OCCURRED AND THE COUNTY WHERE THE PETITIONER IS SHELTERED, TO SPECIFY WHERE AN ACTION MUST BE FILED IF THE RESPONDENT IS A NONRESIDENT, TO PROVIDE PROCEDURES FOR TRANSFERRING AN ACTION TO THE PROPER COUNTY, AND TO AUTHORIZE THE PETITION ON THE HEARING TO BE HELD IN ANY COUNTY IN THE CIRCUIT IN WHICH THE ACTION WAS FILED; TO AMEND SECTION 20-4-50, RELATING TO THE HEARING ON A PETITION FOR AN ORDER FOR PROTECTION FROM DOMESTIC ABUSE, SO AS TO DELETE THE PROVISION ALLOWING THESE HEARINGS TO BE SCHEDULED IN ANY COUNTY IN THE JUDICIAL CIRCUIT; TO AMEND SECTION 8-21-310, AS AMENDED, RELATING TO THE SCHEDULE OF FEES AND COSTS TO BE COLLECTED IN EACH COUNTY BY CLERKS OF COURT, REGISTERS OF DEEDS, OR COUNTY TREASURERS, SO AS TO PROVIDE FOR UNIFORM FEE INCREASES; BY ADDING SECTION 14-1-203 SO AS TO PROVIDE A SCHEDULE FOR THE DISTRIBUTION OF THE REVENUE DERIVED FROM THE FEES, COSTS, AND ALLOWANCES ENUMERATED IN SECTION 20-7-1440; TO AMEND SECTION 14-1-204, RELATING TO THE DISTRIBUTION OF THE FILING FEE PAID FOR FILING COMPLAINTS OR PETITIONS IN CIVIL ACTIONS IN A COURT OF RECORD, SO AS TO INCREASE THE FEE FROM SEVENTY TO ONE HUNDRED DOLLARS AND TO RECALCULATE THE DISTRIBUTION OF THE REVENUE DERIVED FROM THE FEE; TO AMEND SECTION 20-7-1440, AS AMENDED, RELATING TO THE FEES, COSTS, AND ALLOWANCES CHARGED IN CERTAIN ACTIONS FOR SUPPORT OF A SPOUSE OR DEPENDENT CHILDREN, SO AS TO INCREASE THE AMOUNT OF THE COST OR FEE FROM THREE TO FIVE PERCENT AND TO PROVIDE THAT THE REVENUE MUST BE REMITTED IN ACCORDANCE WITH SECTION 14-1-203; TO AMEND SECTION 36-9-525, RELATING TO THE FEES CHARGED FOR FILING AND INDEXING CERTAIN RECORDS IN ACCORDANCE WITH TILE 36 OF THE 1976 CODE, SO AS TO RECALCULATE HOW THE FEE IS ASSESSED; TO AMEND SECTION 38-53-70, RELATING TO THE REMISSION OF A JUDGMENT OF FORFEITURE AGAINST A DEFENDANT OR HIS SURETY, SO AS TO PROVIDE THAT THE SURETY MUST PAY A HANDLING FEE TO THE COURT IN AN AMOUNT EQUAL TO FOUR PERCENT OF THE VALUE OF THE BOND; BY ADDING SECTION 8-21-320 SO AS TO ASSESS A TWENTY-FIVE-DOLLAR FEE FOR EVERY MOTION MADE IN THE COURT OF COMMON PLEAS AND FAMILY COURT, NOT INCLUDING FAMILY COURT JUVENILE DELINQUENCY PROCEEDINGS; TO AMEND SECTION 16-25-70, AS AMENDED, RELATING TO CRIMINAL DOMESTIC VIOLENCE ARREST PROCEDURES AND THE INADMISSIBILITY OF EVIDENCE RESULTING FROM A WARRANTLESS ARREST FOR CRIMINAL DOMESTIC VIOLENCE, SO AS TO SPECIFY THE CIRCUMSTANCES UNDER WHICH SUCH EVIDENCE IS ADMISSIBLE.
Be it enacted by the General Assembly of the State of South Carolina:
Counties in which an action may be brought
SECTION 1. Section 20-4-30 of the 1976 Code is amended to read:
"Section 20-4-30. (A) The family court has jurisdiction over all proceedings under this chapter except that, during nonbusiness hours or at other times when the court is not in session, the petition may be filed with a magistrate. The magistrate may issue an order of protection granting only the relief provided by Section 20-4-60(a)(1).
(B) Except as provided in subsection (C), actions for an order of protection must be filed in the county in which:
(1) the alleged act of abuse occurred;
(2) the petitioner resides or is sheltered, unless the petitioner is a nonresident of the State;
(3) the respondent resides, unless the respondent is a nonresident of the State; or
(4) the parties last resided together.
(C)(1) If the action is filed in the county in which the petitioner resides or is sheltered and the respondent is a nonresident of that county, the petitioner must request that the action be immediately transferred to another county in which venue is proper and must include a supplemental petition that designates the transfer county and that changes all specific references to the county of filing to the transfer county. The clerk of court must transfer and forward the supplemental petition to the transfer county.
(2) If the petitioner is a nonresident of the State, the action must be filed in the county specified in item (1), (3), or (4) of subsection (B).
(3) If the respondent is a nonresident of the State, the petitioner may request that the action be immediately transferred to another county in which venue is proper and must include a supplemental petition that designates the transfer county and that changes all specific references to the county of filing to the transfer county. The clerk of court must transfer and forward the supplemental petition to the transfer county.
(D) Hearings on the petition may be held in any county in the same judicial circuit as the county in which the action is filed or to which the action is transferred."
Hearings on petitions
SECTION 2. Section 20-4-50 of the 1976 Code is amended to read:
"Section 20-4-50. (a) Within twenty-four hours after service of a petition under this chapter upon the respondent, the court may, for good cause shown, hold an emergency hearing and issue an order of protection if the petitioner proves the allegation of abuse by a preponderance of the evidence. A prima facie showing of immediate and present danger of bodily injury, which may be verified by supporting affidavits, constitutes good cause for purposes of this section.
(b) If the court denies the motion for a twenty-four hour hearing or such a hearing is not requested, the petitioner may request and the court must grant a hearing within fifteen days of the filing of a petition. The court must cause a copy of the petition to be served upon the respondent at least five days prior to the hearing, except as provided in subsection (a), in the same manner required for service in the circuit courts. Where service is not accomplished five days prior to the hearing, the respondent, upon his motion, is entitled to a continuance until such time is necessary to provide for compliance with this section."
Court fees; increases; schedule for fee distribution
SECTION 3. A. Section 8-21-310 of the 1976 Code, as last amended by Act 155 of 1997, is further amended to read:
"Section 8-21-310. Except as otherwise expressly provided, the following fees and costs must be collected on a uniform basis in each county by clerks of court and registers of deeds or county treasurers as may be determined by the governing body of the county:
(1) for recording a deed to or a mortgage on real estate, ten dollars; and an additional one dollar a page for any deed or mortgage containing more than four pages; for entry of a deed or mortgage that covers both real estate and personal property in the indexes for both real and personal property conveyances or mortgages, one dollar additional;
(2) for recording a chattel mortgage, conditional sale contract, lease or contract of sale of personal property, and any other document required to be recorded under the Uniform Commercial Code (Title 36), the fees provided in Title 36;
(3) for recording an instrument which assigns, transfers, or affects a single real estate mortgage or other instrument affecting title to real property or lien for the payment of money, unless it is part of the original instrument when initially filed, six dollars; and if the instrument assigns, transfers, or affects more than one real estate mortgage, instrument, or lien, six dollars for each mortgage, instrument, or lien assigned, transferred, or affected and referred to in the instrument and an additional one dollar for each page for any instrument exceeding one page;
(4) for recording any lease, contract of sale, trust indenture, or other document affecting title or possession of real property not otherwise provided for in this section, ten dollars, and an additional one dollar a page for a document containing more than four pages;
(5) for recording satisfaction on the record of a mortgage of real estate or a chattel mortgage or other recorded lien, and certifying the entry on the original or a copy, five dollars;
(6) for recording separate probates, affidavits, or certificates which are not part of or attached to another document to be recorded, ten dollars;
(7) for recording a plat larger than eight and one-half by fourteen inches, ten dollars; for plats of 'legal size' dimensions, or smaller, five dollars;
(8) for recording decree of foreclosure or partition of real property in mortgage book or deed book, the same fee as for recording deed or mortgage of real estate;
(9) for recording any other paper affecting title or possession of real estate or personal property and required by law to be recorded, except judicial records, ten dollars, and an additional one dollar a page for a document containing more than four pages;
(10) for filing power of attorney, trustee qualification, or other appointment, fifteen dollars, and an additional one dollar a page for a document containing more than four pages;
(11)(a) for filing first complaint or petition, including application for a remedial and prerogative writ and bond on attachment or other bond, in a civil action or proceeding, in a court of record, one hundred dollars. There is no further fee for filing an amended or supplemental complaint or petition nor for filing any other paper in the same action or proceeding. An original application for post conviction relief may be filed without fee upon permission of the court to which the application is addressed. There is no further fee for entering and filing a verdict, judgment, final decree, or order of dismissal, and enrolling a judgment thereon, for signing, sealing, and issuance of execution, or for entering satisfaction or partial satisfaction on a judgment:
(b) for filing, recording, and indexing lis pendens when not accompanied by summons and complaint, ten dollars;
(c) for receiving and enrolling transcripts of judgment from magistrate's court and federal district courts, ten dollars;
(d) for filing and enrolling a judgment by confession, ten dollars;
(12) no fee may be charged to a defendant or respondent for filing an answer, return, or other papers in any civil action or proceeding, in a court of record;
(13) for taking and filing an order for bail with or without bond, one dollar; with bond when surety must be justified, ten dollars;
(14) for taking and filing bond or security costs, one dollar; with bond when surety must be justified, ten dollars;
(15) for filing or recording any commission of notary public or other public office, license or permit to practice any profession or trade, notice of formation or dissolution of any partnership, five dollars;
(16) for filing the charter of any public or private corporation or association required by law to be recorded, ten dollars, and an additional one dollar a page for any such document containing more than four pages;
(17) for issuing an official certificate under seal of court not otherwise specified in this section, one dollar;
(18) for holding a hearing for condemnation proceedings, twenty-five dollars a day;
(19) for filing notice of discharge in bankruptcy, fifteen dollars;
(20) for filing and enrolling and satisfaction of South Carolina and United States government tax liens:
(a) for filing and enrolling and satisfying executions or warrants for distraint for the South Carolina Employment Security Commission, the South Carolina Department of Revenue, or any other state agency, where costs of the executions or warrants for distraint are chargeable to the persons against whom such executions or warrants for distraint are issued, ten dollars;
(b) for filing and enrolling and satisfying any tax lien of any agency of the United States government, where the costs of the executions are chargeable to the persons against whom such executions are issued, ten dollars;
(21) for filing and processing an order for the Destruction of Arrest Records, thirty-five dollars, which fee must be for each order regardless of the number of cases contained in the order. The fee under the provisions of this item does not apply to cases where the defendant is found not guilty or where the underlying charge is dismissed or nol prossed unless that dismissal or nol prosse is the result of successful completion of a pretrial intervention program;
(22) for filing, indexing, enrolling, and entering a foreign judgment and an affidavit pursuant to Article 11, Chapter 35, Title 15 of the 1976 Code, one hundred dollars.
The clerk shall mark 'satisfied' upon receipt of the fees provided in this item any tax lien or warrant for distraint issued by any agency of this State or of the United States upon receipt of a certificate duly signed by an authorized officer of any agency of this State or the United States to the effect that the execution or warrant for distraint has been paid and satisfied."
B. The 1976 Code is amended by adding:
"Section 14-1-203. The revenue from the fee set in Section 20-7-1440(C) must be remitted to the county in which the proceeding is instituted. Forty-four percent of the revenues must be remitted monthly by the fifteenth day of each month to the State Treasurer on forms in a manner prescribed by him. When payment is made to the county in installments, the state's portion must be remitted to the State Treasurer by the county treasurer on a monthly basis. The forty-four percent remitted to the State Treasurer must be deposited as follows:
(1) 43.76 percent to the general fund;
(2) 10.04 percent to the Department of Mental Health to be used exclusively for the treatment and rehabilitation of drug addicts within the department's addiction center facilities;
(3) 6.20 percent to the State Office of Victim Assistance under the South Carolina Victim's Compensation Fund; and
(4) 40.00 percent to the South Carolina Judicial Department."
C. Section 14-1-204 of the 1976 Code, as added by Act 155 of 1997, is amended to read:
"Section 14-1-204. The one-hundred dollar filing fee for documents and actions described in Section 8-21-310(11)(a) must be remitted to the county in which the proceeding is instituted, and fifty-six percent of these filing fee revenues must be delivered to the county treasurer to be remitted monthly by the fifteenth day of each month to the State Treasurer. When a payment is made to the county in installments, the state's portion must be remitted to the State Treasurer by the county treasurer on a monthly basis.
The fifty-six percent of the one-hundred dollar fee prescribed in Section 8-21-310(11)(a) remitted to the State Treasurer must be deposited as follows:
(1) 31.52 percent to the state general fund;
(2) 7.23 percent to the Department of Mental Health to be used exclusively for the treatment and rehabilitation of drug addicts within the department's addiction center facilities;
(3) 4.47 percent to the State Office of Victim Assistance under the South Carolina Victim's Compensation Fund; and
(4) 26.78 percent to the Defense of Indigents Per Capita Fund, administered by the Commission on Indigent Defense, which shall then distribute these funds on December thirty-first and on June thirtieth of each year to South Carolina organizations that are grantees of the Legal Services Corporation, in amounts proportionate to each recipient's share of the state's poverty population; and
(5) 30.00 percent to the South Carolina Judicial Department."
D. Section 20-7-1440(C) of the 1976 Code, as last amended by Act 100 of 1999, is further amended to read:
"(C) In actions for support for the spouse or dependent children, when paid through the court or through a centralized wage withholding system operated by the Department of Social Services and not directly, the court shall assess costs against the party required to pay the support in the amount of five percent of the support paid, which costs must be in addition to the support money paid. The revenue from the costs must be remitted as provided in Section 14-1-203."
E. Section 36-9-525(a) of the 1976 Code, as added by Act 67 of 2001, is further amended to read:
"(a) Except as otherwise provided in subsection (e), the fee for filing and indexing a record under this part, other than an initial financing statement of the kind described in subsection (b), is the amount specified in subsection (c), if applicable, plus two dollars for the first page and one dollar for each additional page."
F. Section 38-53-70 of the 1976 Code is amended to read:
"Section 38-53-70. If a defendant fails to appear at a court proceeding to which he has been summoned, the court must issue a bench warrant for the defendant. If the surety fails to surrender the defendant or place a hold on the defendant's release from incarceration, commitment, or institutionalization within thirty days of the issuance of the bench warrant, the bond shall be forfeited. At any time before execution is issued on a judgment of forfeiture against a defendant or his surety, the court may direct that the judgment be remitted in whole or in part, upon conditions as the court may impose, if it appears that justice requires the remission of part or all of the judgment. In making a determination as to remission of the judgment, the court shall consider the costs to the State or any county or municipality resulting from the necessity to continue or terminate the defendant's trial and the efforts of law enforcement officers or agencies to locate the defendant. The court in its discretion may permit the surety to pay the estreatment in installments for a period of up to six months; however, the surety must pay a handling fee to the court in an amount equal to four percent of the value of the bond. If at any time during the period in which installments are to be paid the defendant is surrendered to the appropriate detention facility and the surety complies with the re-commitment procedures, the surety is relieved of any further liability."
G. The 1976 Code is amended by adding:
"Section 8-21-320. There is assessed for every motion made in the court of common pleas and family court, not including motions made in family court juvenile delinquency proceedings, a fee of twenty-five dollars. The fee must accompany each motion filed. The Supreme Court has authority to issue administrative rules to exempt from the motion fee certain family court matters involving rules to show cause in child and spousal support matters. The Supreme Court may waive the filing fees imposed by this section upon a proper showing of indigency. The revenue from this fee must be collected by the clerk of court in each court and remitted to the State Treasurer and credited to a separate judicial department support fund for the exclusive use of the judicial department."
H. Notwithstanding the general effective date of this act, this section takes effect July 1, 2002.
Arrests; inadmissibility of evidence resulting from warrantless arrests
SECTION 4. Section 16-25-70 of the 1976 Code, as last amended by Act 120 of 1997, is further amended to read:
"Section 16-25-70. (A) A law enforcement officer may arrest, with or without a warrant, a person at the person's place of residence or elsewhere if the officer has probable cause to believe that the person is committing or has freshly committed a misdemeanor or felony under the provisions of Section 16-25-20, 16-25-50, or 16-25-65 even if the act did not take place in the presence of the officer. The officer may, if necessary, verify the existence of an order of protection by telephone or radio communication with the appropriate law enforcement agency.
(B) A law enforcement officer must arrest, with or without a warrant, a person at the person's place of residence or elsewhere if physical manifestations of injury to the alleged victim are present and the officer has probable cause to believe that the person is committing or has freshly committed a misdemeanor or felony under the provisions of Section 16-25-20, 16-25-50, or 16-25-65 even if the act did not take place in the presence of the officer. The officer may, if necessary, verify the existence of an order of protection by telephone or radio communication with the appropriate law enforcement agency.
(C) In effecting a warrantless arrest under this section, a law enforcement officer may enter the residence of the person to be arrested in order to effect the arrest where the officer has probable cause to believe that the action is reasonably necessary to prevent physical harm or danger to a family or household member.
(D) If a law enforcement officer receives conflicting complaints of domestic or family violence from two or more household members involving an incident of domestic or family violence, the officer must evaluate each complaint separately to determine who was the primary aggressor. If the officer determines that one person was the primary physical aggressor, the officer must not arrest the other person accused of having committed domestic or family violence. In determining whether a person is the primary aggressor, the officer must consider:
(1) prior complaints of domestic or family violence;
(2) the relative severity of the injuries inflicted on each person taking into account injuries alleged which may not be easily visible at the time of the investigation;
(3) the likelihood of future injury to each person;
(4) whether one of the persons acted in self-defense; and
(5) household member accounts regarding the history of domestic violence.
(E) A law enforcement officer must not threaten, suggest, or otherwise indicate the possible arrest of all parties to discourage a party's requests for intervention by law enforcement.
(F) A law enforcement officer who arrests two or more persons for a crime involving domestic or family violence must include the grounds for arresting both parties in the written incident report and must include a statement in the report that the officer attempted to determine which party was the primary aggressor pursuant to this section and was unable to make a determination based upon the evidence available at the time of the arrest.
(G) When two or more household members are charged with a crime involving domestic or family violence arising from the same incident and the court finds that one party was the primary aggressor pursuant to this section, the court, if appropriate, may dismiss charges against the other party or parties.
(H) Evidence discovered as a result of a warrantless search administered pursuant to a complaint filed under this article is admissible in a court of law:
(1) if it is found:
(a) in plain view of a law enforcement officer in a room in which the officer is interviewing, detaining, or pursuing a suspect; or
(b) pursuant to a search incident to a lawful arrest for a violation of this article or for a violation of Chapter 3, Title 16; or
(2) if it is evidence of a violation of this article.
An officer may arrest and file criminal charges against a suspect for any offense that arises from evidence discovered pursuant to this section.
Unless otherwise provided for in this section, no evidence of a crime found as a result of a warrantless search administered pursuant to a complaint filed under this article is admissible in any court of law.
(I) In addition to the protections granted to the law enforcement officer and law enforcement agency under the South Carolina Tort Claims Act, a law enforcement officer is not liable for an act, omission, or exercise of discretion under this section unless the act, omission, or exercise of discretion constitutes gross negligence, recklessness, wilfulness, or wantonness."
SECTION 5. This act takes effect upon approval by the Governor and applies to orders of protection filed on or after the effective date.
Ratified the 6th day of June, 2002.
Approved the 18th day of June, 2002.
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