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S. 958
STATUS INFORMATION
General Bill
Sponsors: Senators Fair, Branton, Cromer, Mescher, Giese, Waldrep and Martin
Document Path: l:\council\bills\ms\7105cm04.doc
Introduced in the Senate on February 11, 2004
Currently residing in the Senate
Summary: Post-conviction relief proceedings
HISTORY OF LEGISLATIVE ACTIONS
Date Body Action Description with journal page number
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2/11/2004 Senate Introduced and read first time SJ-29
2/11/2004 Senate Referred to Committee on Judiciary SJ-29
4/21/2004 Senate Committee report: Majority favorable with amend.,
minority unfavorable Judiciary SJ-46
4/22/2004 Scrivener's error corrected
View the latest legislative information at the LPITS web site
VERSIONS OF THIS BILL
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Indicates New Matter
COMMITTEE REPORT
April 21, 2004
S. 958
Introduced by Senators Fair, Branton, Cromer, Mescher, Giese, Waldrep and Martin
S. Printed 4/21/04--S. [SEC 4/22/04 2:35 PM]
Read the first time February 11, 2004.
To whom was referred a Bill (S. 958) to amend the Code of Laws of South Carolina, 1976, by adding Section 17-27-65 so as to provide that a person who takes part in the procurement, etc., respectfully
That they have duly and carefully considered the same and recommend that the same do pass with amendment:
Amend the bill, as and if amended, by striking all after the enacting words and inserting therein the following:
/ SECTION 1. Section 17-27-20(a)(6) of the 1976 Code is amended to read:
"(6) That the conviction or sentence is otherwise subject to collateral attack upon any ground of alleged error heretofore available under any common law, statutory, or other writ, motion, petition, proceeding, or remedy; may institute, without paying a filing fee for the initial filing pursuant to this item, a proceeding under this chapter to secure relief. Provided, however However, that this section shall must not be construed to permit collateral attack on the ground that the evidence was insufficient to support a conviction."
SECTION 2. Section 17-27-50 of the 1976 Code is amended to read:
"Section 17-27-50. The application shall identify the proceedings in which the applicant was convicted, give the date of the entry of the judgment and accompanying sentence complained of, specifically set forth the grounds upon which the application is based, and clearly state the relief desired, and state whether the applicant previously has filed an application for post-conviction relief or a petition for habeas corpus in state court, relating to the sentence for which he is currently incarcerated. If the applicant previously filed an application for post-conviction relief or a petition for habeas corpus concerning his current incarceration, the applicant must attach a copy of his prisoner trust account balance sheet. Facts within the personal knowledge of the applicant shall must be set forth separately from other allegations of facts and shall must be verified as provided in Section 17-27-40. Affidavits, records, or other evidence supporting it's the allegations shall must be attached to the application or the application shall must recite why they those documents are not attached. The application shall must identify all previous proceedings, together with the grounds therein asserted at those proceedings, and any other action taken by the applicant to secure relief from his conviction or sentence. Argument, citations, and discussion of authorities are unnecessary not required. The application shall be made on such a form as prescribed by the Supreme Court. The application must contain a provision informing the applicant that a second or subsequent application for post-conviction relief determined by the court as frivolous may result in the prisoner's loss of work credits, education credits, good time credits, and prisoner trust funds."
SECTION 3. Chapter 27, Title 17 of the 1976 Code is amended by adding:
"Section 17-27-65. (A) Notwithstanding another any other provision of law, if a prisoner brings a second or subsequent action for post-conviction relief, the court, upon the filing of the action, must order the prisoner to pay, as a partial payment of any filing fees required by law, an initial payment of twenty percent of the greater of:
(1) the average monthly deposits to the prisoner's trust account administered by the Department of Corrections; or
(2) the average monthly balance in the prisoner's trust account for the six-month period immediately preceding the filing of the action.
After payment of the initial partial filing fee, the prisoner is required to make monthly payments of ten percent of the preceding month's income from his trust account. The department must withdraw the monies maintained in the prisoner's trust account for payment of filing fees and on a quarterly basis forward the monies collected to the appropriate clerk of court until the filing fees are paid in full.
(B) A prisoner who cannot pay the initial partial filing fee is not prohibited from filing a second or subsequent action for post-conviction relief. The prisoner may file a second or subsequent action for post-conviction relief and, upon the filing of the action, the court must order the prisoner to make payments toward the cost of the filing fee as the action progresses. In the order, the court must specify a payment schedule.
(C) The prisoner must file a certified copy of his trust account with the court that reflects his trust account balance at the time the complaint is filed."
SECTION 4. Chapter 27, Title 17 of the 1976 Code is amended by adding:
"Section 17-27-68. (A) A prisoner whose application for post-conviction relief is determined by the court to be frivolous may be ordered to pay the attorney's fees and court costs of the opposing party under the South Carolina Frivolous Civil Proceedings Sanctions Act.
(B) In addition to the penalties contained in subsection (A), a prisoner who files a frivolous second or subsequent post-conviction relief application is subject to the loss of prisoner trust funds and having his application dismissed."
SECTION 5. This act takes effect upon approval by the Governor. /
Renumber sections to conform.
Amend title to conform.
Majority favorable. Minority unfavorable.
MICHAEL L. FAIR RALPH ANDERSON
For Majority. For Minority.
EXPLANATION OF IMPACT:
Judicial Department
The Judicial Department indicates there will be a minimal fiscal impact on the General Fund of the State, which can be absorbed by the agency at the current level of funding.
Department of Corrections
The Department of Corrections indicates there will be a savings to the agency. The cost savings would occur due to the reduction in transportation cost associated with the Post Conviction Relief (PCR) Hearing. The agency states that the savings could be as high as $300,000 annually, if half of all PCR transports were eliminated and as low as $150,000 annually, if 25% of the PCR transports were eliminated.
Approved By:
Don Addy
Office of State Budget
TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING SECTION 17-27-65 SO AS TO PROVIDE THAT A PERSON WHO TAKES PART IN THE PROCUREMENT, INITIATION, CONTINUATION, OR DEFENSE OF ANY SECOND OR SUBSEQUENT POST-CONVICTION RELIEF PROCEEDING MAY BE ASSESSED FOR PAYMENT OF ALL OR A PORTION OF THE ATTORNEY'S FEES AND COURT COSTS OF THE OTHER PARTY UNDER CERTAIN CIRCUMSTANCES, TO DEFINE THE TERM "PERSON", AND TO PROVIDE PENALTIES FOR FILING A NON-MERITORIOUS SECOND OR SUBSEQUENT POST-CONVICTION RELIEF APPLICATION; BY ADDING SECTION 17-27-68 SO AS TO PROVIDE THAT A PRISONER IS RESPONSIBLE FOR PAYING CERTAIN FEES ASSOCIATED WITH FILING A SECOND OR SUBSEQUENT ACTION FOR POST-CONVICTION RELIEF FROM MONIES MAINTAINED IN HIS PRISONER TRUST ACCOUNT; TO AMEND SECTION 17-27-50, RELATING TO THE FORM AND CONTENTS OF AN APPLICATION FOR POST-CONVICTION RELIEF, SO AS TO PROVIDE THAT THE APPLICATION MUST DETERMINE WHETHER THE APPLICANT PREVIOUSLY HAS FILED AN APPLICATION FOR POST-CONVICTION RELIEF OR A PETITION FOR HABEAS CORPUS RELATING TO HIS PRESENT INCARCERATION, REQUIRE THE APPLICANT TO ATTACH A COPY OF HIS INMATE TRUST ACCOUNT BALANCE SHEET UNDER CERTAIN CIRCUMSTANCES, AND MUST CONTAIN A PROVISION THAT STATES THAT A NONMERITORIOUS FUTURE APPLICATION FOR POST-CONVICTION RELIEF MAY RESULT IN THE INMATE'S LOSS OF WORK CREDITS, EDUCATION CREDITS, GOOD TIME CREDITS, AND INMATE TRUST FUNDS; AND TO AMEND SECTION 17-27-20, RELATING TO POST-CONVICTION RELIEF FILINGS, SO AS TO PROVIDE THAT A FEE IS NOT REQUIRED FOR AN INITIAL FILING FOR POST-CONVICTION RELIEF.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Chapter 27, Title 17 of the 1976 Code is amended by adding:
"Section 17-27-65. Notwithstanding another provision of law, if a prisoner brings a second or subsequent action for post-conviction relief, the court, upon the filing of the action, shall order the prisoner to pay as a partial payment of any filing fees required by law a first-time payment of twenty percent of the preceding six months' income from the prisoner's trust account administered by the Department of Corrections and thereafter monthly payments of ten percent of the preceding month's income for this account. The department shall withdraw the monies maintained in the prisoner's trust account for payment of filing fees and shall forward quarterly the monies collected to the appropriate court clerk or clerks until the filing fees are paid in full.
The prisoner must file a certified copy of his trust account with the court that reflects the prisoner's balance at the time the complaint is filed unless the prisoner does not have a trust account."
SECTION 2. Chapter 27, Title 17 of the 1976 Code is amended by adding:
"Section 17-27-68. (A) A person who takes part in the procurement, initiation, continuation, or defense of any second or subsequent post-conviction relief proceeding may be assessed for payment of all or a portion of the attorney's fees and court costs of the other party if:
(1) he does so primarily for a purpose other than that of securing the proper discovery, joinder of parties, or adjudication of the claim upon which the proceedings are based; and
(2) the proceedings have terminated in favor of the person seeking an assessment of the fees and costs.
(B) As used in this section, 'person' means any individual, corporation, company, association, firm, partnership, society, joint stock company, and any other entity, including any governmental entity or unincorporated association of persons.
(C) In addition to the penalties contained in subsection (A), a person who files a nonmeritorious second or subsequent post-conviction relief application is subject to the loss of inmate trust funds and having his application dismissed."
SECTION 3. Section 17-27-50 of the 1976 Code is amended to read:
"Section 17-27-50. The application shall identify the proceedings in which the applicant was convicted, give the date of the entry of the judgment and sentence complained of, specifically set forth the grounds upon which the application is based, and clearly state the relief desired, and determine whether the applicant previously has filed an application for post-conviction relief or a petition for habeas corpus relating to his present incarceration. If the applicant previously has filed an application or a petition for habeas corpus concerning his present incarceration, the applicant must attach a copy of his inmate trust account balance sheet. Facts within the personal knowledge of the applicant shall be set forth separately from other allegations of facts and shall be verified as provided in Section 17-27-40. Affidavits, records or other evidence supporting its allegations shall be attached to the application or the application shall recite why they are not attached. The application shall identify all previous proceedings, together with the grounds therein asserted, taken by the applicant to secure relief from his conviction or sentence. Argument, citations and discussion of authorities are unnecessary. The application shall be made on such a form as prescribed by the Supreme Court. The application must contain a provision that states that a nonmeritorious future application for post-conviction relief may result in the inmate's loss of work credits, education credits, good time credits, and inmate trust funds."
SECTION 4. Section 17-27-20(a)(6) of the 1976 Code is amended to read:
"(6) That the conviction or sentence is otherwise subject to collateral attack upon any ground of alleged error heretofore available under any common law, statutory, or other writ, motion, petition, proceeding, or remedy; may institute, without paying a filing fee for the initial filing pursuant to this item, a proceeding under this chapter to secure relief. Provided, however, that this section shall not be construed to permit collateral attack on the ground that the evidence was insufficient to support a conviction."
SECTION 5. This act takes effect upon approval by the Governor.
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