South Carolina General Assembly
116th Session, 2005-2006

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Bill 4735

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(Text matches printed bills. Document has been reformatted to meet World Wide Web specifications.)

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COMMITTEE REPORT

April 5, 2006

H. 4735

Introduced by Reps. Harrison and Jennings

S. Printed 4/5/06--H.

Read the first time February 28, 2006.

            

THE COMMITTEE ON JUDICIARY

To whom was referred a Bill (H. 4735) to amend Section 44-23-410, Code of Laws of South Carolina, 1976, relating to determining the fitness of a person charged with a crime to stand trial, etc., respectfully

REPORT:

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, Section 44-23-410 page 2, line 13 and 28 by deleting /sixty/ and inserting /forty-five/ and on line 31 by deleting /thirty/ and inserting /fifteen/. So when amended Section 44-23-410 reads:

/Section 44-23-410.    Whenever a judge of the Circuit Court or Family Court has reason to believe that a person on trial before him, charged with the commission of a criminal offense or civil contempt, is not fit to stand trial because the person lacks the capacity to understand the proceedings against him or to assist in his own defense as a result of a lack of mental capacity, the judge shall:

(1)    order examination of the person by two examiners designated by the Department of Mental Health if the person is suspected of having a mental illness or designated by the Department of Disabilities and Special Needs if the person is suspected of being mentally retarded or having a related disability or by both sets of examiners if the person is suspected of having both mental illness and mental retardation or a related disability; the examination must be made within fifteen forty-five days after the receipt of the court's order and may be conducted in any suitable place unless otherwise designated by the court; or

(2)    order the person committed for examination and observation to an appropriate facility of the Department of Mental Health or the Department of Disabilities and Special Needs for a period not to exceed fifteen days. If at the end of fifteen days the examiners have been unable to determine whether the person is fit to stand trial, the director of the facility shall request in writing an additional period for observation not to exceed fifteen days. If the person or his counsel requests, the person may be examined additionally by a designated examiner of his choice. The report of the examination is admissible as evidence in subsequent hearings pursuant to Section 44-23-430. However, the court may prescribe the time and conditions under which the independent examination is conducted Before the expiration of the forty-five day period provided for examination in item (1), the examiners may request, and upon a showing of good cause the judge may grant, an extension of time of up to fifteen days to complete the examination. The report of examination is admissible as evidence in subsequent hearings pursuant to Section 44-23-430. If the person or his counsel request, the court may authorize the person to be examined additionally by a designated examiner of his choice. However, the court may prescribe the time and conditions under which the independent examination is conducted. If the examiners designated by the Department of Mental Health find indications of mental retardation or a related disability but not mental illness, the department shall not render an evaluation on the person's mental capacity, but shall inform the court that the person is 'not mentally ill' and recommend that the person should be evaluated for competency to stand trial by the Department of Disabilities and Special Needs. If the examiners designated by the Department of Disabilities and Special Needs find indications of mental illness but not mental retardation or a related disability, the department shall not render an evaluation on the person's mental capacity, but shall inform the court that the person does 'not have mental retardation or a related disability' and recommend that the person should be evaluated for competency to stand trial by the Department of Mental Health. If either the Department of Mental Health or the Department of Disabilities and Special Needs finds a preliminary indication of a dual diagnosis of mental illness and mental retardation or a related disability, this preliminary finding must be reported to the court with the recommendation that one examiner from the Department of Mental Health and one examiner from the Department of Disabilities and Special Needs be designated to further evaluate the person and render a final report on his mental capacity./

Renumber sections to conform.

Amend title to conform.

JAMES H. HARRISON for Committee.

            

A BILL

TO AMEND SECTION 44-23-410, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO DETERMINING THE FITNESS OF A PERSON CHARGED WITH A CRIME TO STAND TRIAL, SO AS TO INCREASE FROM FIFTEEN DAYS TO SIXTY DAYS THE TIME WITHIN WHICH THE MENTAL HEALTH EVALUATION OF THE PERSON MUST BE COMPLETED AND TO AUTHORIZE THE COURT ON GOOD CAUSE SHOWN TO GRANT AN EXTENSION OF UP TO THIRTY DAYS; TO AMEND SECTION 44-23-420, RELATING TO THE FITNESS TO STAND TRIAL REPORT OF A MENTAL HEALTH EVALUATION EXAMINER, SO AS TO INCREASE FROM FIVE TO TEN DAYS THE TIME WITHIN WHICH THE EXAMINER MUST SUBMIT HIS REPORT; AND TO AMEND SECTION 44-23-430, RELATING TO COMPETENCY HEARINGS AND DISPOSITION OF CASES IN SUCH HEARINGS, SO AS TO DECREASE FROM SIXTY DAYS TO FOURTEEN DAYS THE TIME WITHIN WHICH THE SOLICITOR MUST INITIATE JUDICIAL COMMITMENT PROCEEDINGS FOR A PERSON FOUND TO BE UNFIT TO STAND TRIAL AND IN ADDITION TO HOSPITALIZING THE PERSON, TO AUTHORIZE THE COURT IN SUCH A PROCEEDING TO CONTINUE THE PERSON IN DETENTION OR ON BOND.

Be it enacted by the General Assembly of the State of South Carolina:

SECTION    1.    Section 44-23-410 of the 1976 Code is amended to read:

"Section 44-23-410.    Whenever a judge of the Circuit Court or Family Court has reason to believe that a person on trial before him, charged with the commission of a criminal offense or civil contempt, is not fit to stand trial because the person lacks the capacity to understand the proceedings against him or to assist in his own defense as a result of a lack of mental capacity, the judge shall:

(1)    order examination of the person by two examiners designated by the Department of Mental Health if the person is suspected of having a mental illness or designated by the Department of Disabilities and Special Needs if the person is suspected of being mentally retarded or having a related disability or by both sets of examiners if the person is suspected of having both mental illness and mental retardation or a related disability; the examination must be made within fifteen sixty days after the receipt of the court's order and may be conducted in any suitable place unless otherwise designated by the court; or

(2)    order the person committed for examination and observation to an appropriate facility of the Department of Mental Health or the Department of Disabilities and Special Needs for a period not to exceed fifteen days. If at the end of fifteen days the examiners have been unable to determine whether the person is fit to stand trial, the director of the facility shall request in writing an additional period for observation not to exceed fifteen days. If the person or his counsel requests, the person may be examined additionally by a designated examiner of his choice. The report of the examination is admissible as evidence in subsequent hearings pursuant to Section 44-23-430. However, the court may prescribe the time and conditions under which the independent examination is conducted Before the expiration of the sixty day period provided for examination in item (1), the examiners may request, and upon a showing of good cause the judge may grant, an extension of time of up to thirty days to complete the examination. The report of examination is admissible as evidence in subsequent hearings pursuant to Section 44-23-430. If the person or his counsel request, the court may authorize the person to be examined additionally by a designated examiner of his choice. However, the court may prescribe the time and conditions under which the independent examination is conducted. If the examiners designated by the Department of Mental Health find indications of mental retardation or a related disability but not mental illness, the department shall not render an evaluation on the person's mental capacity, but shall inform the court that the person is 'not mentally ill' and recommend that the person should be evaluated for competency to stand trial by the Department of Disabilities and Special Needs. If the examiners designated by the Department of Disabilities and Special Needs find indications of mental illness but not mental retardation or a related disability, the department shall not render an evaluation on the person's mental capacity, but shall inform the court that the person does 'not have mental retardation or a related disability' and recommend that the person should be evaluated for competency to stand trial by the Department of Mental Health. If either the Department of Mental Health or the Department of Disabilities and Special Needs finds a preliminary indication of a dual diagnosis of mental illness and mental retardation or a related disability, this preliminary finding must be reported to the court with the recommendation that one examiner from the Department of Mental Health and one examiner from the Department of Disabilities and Special Needs be designated to further evaluate the person and render a final report on his mental capacity."

SECTION    2.    Section 44-23-420 of the 1976 Code is amended to read:

"Section 44-23-420.    Within five ten days of examination under Section 44-23-410(1), excluding Saturdays, Sundays, and holidays, or at the conclusion of the observation period under Section 44-23-410(2), the designated examiners shall make a written report to the court which shall include:

(1)    A diagnosis of the person's mental condition, and

(2)    Clinical findings bearing on the issues of whether or not the person is capable of understanding the proceedings against him and assisting in his own defense, and if there is a substantial probability that he will attain that capacity in the foreseeable future.

The report of the designated examiners shall not contain any findings nor shall the examiners testify on the question of insanity should it be raised as a defense unless further examination on the question of insanity is ordered by the court."

SECTION    3.    Section 44-23-430 of the 1976 Code is amended to read:

"Section 44-23-430.    Upon receiving the report of the designated examiners the court shall set a date for and notify the person and his counsel of a hearing on the issue of his fitness to stand trial. If, in the judgment of the designated examiners or the superintendent of the facility if the person has been detained, the person is in need of hospitalization, the court with criminal jurisdiction over the person may authorize his detention in a suitable facility until the hearing. The person shall be entitled to be present at the hearings and to be represented by counsel. If upon completion of the hearing and consideration of the evidence the court finds that:

(1)    The person is fit to stand trial, it shall order the criminal proceedings resumed; or

(2)    The person is unfit to stand trial for the reasons set forth in Section 44-23-410 and is unlikely to become fit to stand trial in the foreseeable future, the solicitor responsible for the criminal prosecution shall initiate judicial admission proceedings pursuant to Sections 44-17-510 through 44-17-610 or Section 44-20-450 within sixty fourteen days, excluding Saturdays, Sundays, and holidays, during which time the court shall may order him the person hospitalized, may order the person to continue in detention if detained or, if on bond, may permit the person to remain on bond; or

(3)    The person is unfit to stand trial but likely to become fit in the foreseeable future, the court shall order him hospitalized for up to an additional sixty days. If the person is found to be unfit at the conclusion of the additional period of treatment the solicitor responsible for the criminal prosecution shall initiate judicial admission proceedings pursuant to Sections 44-17-510 through 44-17-610 or Article 1 of Chapter 21 of this title Section 40-20-450 within fourteen days, excluding Saturdays, Sundays, and holidays, during which time the person shall remain hospitalized.

Subject to the provisions of Section 44-23-460, patients persons against whom criminal charges are pending shall have all the rights and privileges of other involuntarily hospitalized patients persons.

Persons against whom criminal charges are pending but who are not ordered hospitalized involuntarily committed following judicial admission proceedings shall be released."

SECTION    4.    This act takes effect upon approval by the Governor.

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