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Indicates Matter Stricken
Indicates New Matter
Sponsors: Reps. Jennings and McLeod
Document Path: l:\council\bills\swb\6275cm05.doc
Companion/Similar bill(s): 410
Introduced in the House on February 8, 2005
Currently residing in the House Committee on Judiciary
Summary: Post-conviction relief proceedings
HISTORY OF LEGISLATIVE ACTIONS
Date Body Action Description with journal page number ------------------------------------------------------------------------------- 2/8/2005 House Introduced and read first time HJ-3 2/8/2005 House Referred to Committee on Judiciary HJ-4 5/9/2006 House Member(s) request name added as sponsor: McLeod
View the latest legislative information at the LPITS web site
VERSIONS OF THIS BILL
TO AMEND SECTION 17-27-20, AS AMENDED, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO POST-CONVICTION RELIEF FILINGS, SO AS TO PROVIDE THAT A FEE IS NOT REQUIRED FOR AN INITIAL FILING FOR POST-CONVICTION RELIEF; 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 PROVIDE A STATEMENT TO DETERMINE WHETHER THE APPLICANT 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 UNDER CERTAIN CIRCUMSTANCES, AND MUST CONTAIN A PROVISION THAT STATES THAT A NONMERITORIOUS FUTURE APPLICATION FOR POST-CONVICTION RELIEF MAY RESULT IN THE APPLICANT'S LOSS OF WORK CREDITS, EDUCATION CREDITS, GOOD TIME CREDITS, AND INMATE TRUST FUNDS; BY ADDING SECTION 17-27-65 SO AS TO PROVIDE A PROCEDURE FOR A PRISONER TO PAY THE FILING FEES ASSOCIATED WITH AN ACTION FOR POST-CONVICTION RELIEF AND TO EXEMPT CERTAIN PRISONERS FROM PAYING THE FILING FEE; AND BY ADDING SECTION 17-27-68 SO AS TO PROVIDE PENALTIES FOR A PRISONER WHOSE APPLICATION FOR POST-CONVICTION RELIEF IS DETERMINED TO BE FRIVOLOUS.
Be it enacted by the General Assembly of the State of South Carolina:
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 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.
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