Indicates Matter Stricken

Indicates New Matter

 

Amended

March 1, 2023

H. 3532

Introduced by Reps. G. M. Smith, Pope, McCravy, B. Newton, West, Chapman, Burns, Wooten, Haddon, O'Neal, Carter, W. Newton, M. M. Smith, Davis, Pace, B. L. Cox, Gilliam, Thayer, Bailey, Hardee, Blackwell, Leber, Mitchell, Chumley, Ligon, Hiott, Yow, Landing, Hixon, Taylor, Oremus, Cromer and J. E. Johnson

 

S. Printed 03/01/23--H.                                                                         [SEC 3/2/2023 10:39 AM]

Read the first time January 10, 2023

 

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statement of estimated fiscal impact

Explanation of Fiscal Impact

 

State Expenditure

This bill, as amended, provides that persons who commit a violent crime while on pretrial release on bond are subject to a sentencing enhancement of an additional, five-year term of imprisonment. 

 

Service of the five-year sentence is mandatory unless a longer mandatory term of imprisonment, such as the death penalty or a life sentence without the possibility of parole, is provided by law.  Persons receiving the enhanced sentence are not eligible during the first five-year period of imprisonment for parole, work release, or extended work release, but they may earn good-time or work credits during that period that cannot be used to shorten fulfillment of the required five-year sentence.  No part of the five-year sentence may be suspended.  This additional punishment may not be imposed unless the State notifies the defense in writing of its intention to seek such penalty at least 30 days prior to the trial of the violent crime that occurred while the person was on bond or other pretrial release.  If the defendant is convicted of the original violent crime, the court must hold a separate hearing relating to the additional punishment.  It is incumbent upon the State to demonstrate that the defendant was indeed on pretrial release for some other charge at the time the subsequent crime was committed.  Any jury members used for the original offense must be used for the subsequent sentencing hearing; however, if the defendant pled guilty to the original offense or had a bench trial, the judge will preside over the hearing for the subsequent offense.

 

The bill also requires that persons charged with the offenses noted above must, if determined by the court to be eligible for release on bond, post a full cash bond.  In addition, it authorizes the solicitor or the defendant to file a motion for a speedy trial or request that the court set a date certain for trail based on the fact and circumstances of the case.  However, the court must have a hearing or rule on the State's motion within 30 days of the filing.

 

Judicial.  This bill requires Judicial to hold evidentiary hearings for certain defendants.  The agency indicates that it expects implementation of the bill to result in minimal increased expenditures that can be managed within the current General Fund appropriations.

 

Commission on Prosecution Coordination.  The commission indicates that implementation of the bill may have an undetermined cost savings since it will reduce the number of new warrants sent to the Offices of Solicitor by means of reducing the number of repeat offenders of certain crimes.

 

Commission on Indigent Defense.  The commission anticipates that implementation of the bill will have a minimal expenditure impact for the additional hearings; however, the amount of this impact cannot be determined.  The commission expects to manage any expenditure impact using existing General Fund appropriations.

 

Department of Corrections.  This bill may result in an increase in the length of the term of imprisonment for certain inmates.  No data are available to estimate the number of inmates whose sentences may be extended.  However, SCDC expects to manage any expenditure impact using existing General Fund appropriations.  According to SCDC, in FY 2021-22, the annual total cost per inmate was $32,247, of which $30,044 was state funded, and the marginal cost per inmate was $4,836.28, of which $4,829.76 was state funded. 

 

Local Expenditure

This bill will increase county expenditures insofar as it may require juries to be held longer after the primary trial is complete.  However, as the number of defendants who may be charged with subsequent violent crimes while out on bond is unknown, the local expenditure impact is undetermined.

 

State Expenditure

This bill provides that persons who commit certain additional crimes while on pretrial release on bond are subject to a sentencing enhancement of an additional, consecutive term of imprisonment for five years.  These additional crimes include violent crimes, criminal sexual conduct, domestic violence, common law strong-arm robbery, offenses involving weapons, child pornography or dissemination of obscene material to a person under the age of eighteen, failure to register as a sex offender on the Sex Offender Registry, and failure to register as a child abuser on the Central Registry of Child Abuse and Neglect.  The enhanced penalty may only be applied when there is a separate indictment for the additional crime that alleges the person was on pretrial release subject to the terms of bond when the principal offense was committed and a conviction was had.

 

Service of the five-year sentence is mandatory unless a longer mandatory term of imprisonment, such as the death penalty or a life sentence without the possibility of parole, is provided by law.  Persons receiving the enhanced sentence are not eligible during the first five-year period of imprisonment for parole, work release, or extended work release, but they may earn good-time or work credits during that period that cannot be used to shorten fulfillment of the required five-year sentence.  No part of the five-year sentence may be suspended. 

 

The bill also prohibits the court from setting bond for a person who is on pretrial release on a personal recognizance, financial surety bond, or other form of pretrial release when he (1) is charged with a general sessions offense and has a prior conviction for one of the offenses listed above if a period of not more than five years has elapsed since the date of conviction or release of the person from imprisonment, whichever is later, or (2) has a general sessions offense and is charged with committing another offense listed above.  In these instances, the chief administrative judge or his designee must conduct an evidentiary hearing to address the matter of bond within 30 days.  There will be a presumption in favor of detention or revocation and against setting bond unless the defendant can substantively show that his release on bond will not endanger the public and show that he is not a flight risk; however, he must be afforded the opportunity to present information on his own behalf or to present or cross-examine witnesses.  Defense motions for reconsideration of these orders may only be heard upon a prima facie showing of a material change in circumstances. 

 

The bill also requires that persons charged with the offenses noted above must, if determined by the court to be eligible for release on bond, post a full cash bond.

 

Judicial.  This bill requires Judicial to hold evidentiary hearings for certain defendants.  The agency indicates that it expects implementation of the bill to result in minimal increased expenditures that can be managed within the current General Fund appropriations.

 

Commission on Prosecution Coordination.  The commission indicates that implementation of the bill may have an undetermined cost savings since it will reduce the number of new warrants sent to the Offices of Solicitor by means of reducing the number of repeat offenders of certain crimes.

 

Commission on Indigent Defense.  The commission anticipates that implementation of the bill will have a minimal expenditure impact for the additional hearings; however, the amount of this impact cannot be determined.  The commission expects to manage any expenditure impact using existing General Fund appropriations.

 

Department of Corrections.  This bill may result in an increase in the length of the term of imprisonment for certain inmates.  However, no data are available to estimate the number of inmates whose sentences may be extended; as such, the expenditure impact of the bill on SCDC cannot be determined.  SCDC expects to manage any expenditure impact using existing General Fund appropriations.  According to Corrections, in FY 2021-22, the annual total cost per inmate was $32,247, $30,044 of which was state funded, and the marginal cost per inmate was $4,836.28, $4,829.76 of which was state funded. 

 

 

Frank A. Rainwater, Executive Director

Revenue and Fiscal Affairs Office

 

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A bill

 

to amend the South Carolina Code of Laws by adding Section 17-15-270 so as to PROVIDE SENTENCING ENHANCEMENTS FOR PERSONS WHO COMMIT CERTAIN ADDITIONAL CRIMES WHILE ON PRETRIAL RELEASE ON BOND; by adding Section 17-15-280 so as to PROHIBIT PRETRIAL RELEASE ON BOND FOR PERSONS CHARGED WITH COMMITTING CERTAIN ADDITIONAL CRIMES AND TO PROVIDE APPROPRIATE PROCEDURES FOR DETERMINING IF ADDITIONAL CHARGES ARE PENDING; and by amending Section 17-15-15, relating to the Deposit of a cash percentage in lieu of bond, so as to require a full cash bond for persons charged with certain crimes.

    Amend Title To Conform

 

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

 

SECTION 1.  Chapter 15, Title 17 of the S.C. Code is amended by adding:

 

    Section 17-15-270. (A) If a person commits a subsequent violent crime while out on bond or other pretrial release for a previous violent charge, is charged and convicted of committing or attempting to commit the subsequent violent crime, he must be imprisoned for five years in addition to the punishment provided for the principal crime.  The five-year sentence does not apply in cases when the death penalty or a life sentence without parole is imposed for the violent crime.  For purposes of this subsection, a subsequent violent crime is one that occurs at a later date and time than the offense that resulted in the imposition of the bond or other pretrial release conditions.

    (B) Service of the five-year sentence is mandatory unless a longer mandatory minimum term of imprisonment is provided by law for the violent crime. The court may impose this mandatory five-year sentence to run consecutively.

    (C) Except as provided in this subsection, the person sentenced under this section is not eligible during this five-year period for parole, work release, or extended work release. The five years may not be suspended and the person may not complete his term of imprisonment in less than five years pursuant to good-time credits or work credits.

    (D) The additional punishment may not be imposed unless the State notifies the defense in writing of its intention to seek such penalty at least thirty days prior to the trial of the violent crime that occurred while on bond or other pretrial release. If the defendant is convicted of the violent crime that occurred while on bond or other pretrial release, the court must as soon as practicable thereafter conduct a separate sentencing hearing relating to the additional punishment.  Only evidence relating to whether the defendant was on pretrial release at the time the subsequent violent crime was committed may be considered in the sentencing hearing.  In the hearing, the State must prove beyond a reasonable doubt that the defendant was on pretrial release for some other charge at the time the subsequent violent crime was committed.  If the defendant was tried by jury, the same jury that found him guilty of the principal offense must serve for the sentencing hearing.  If trial by jury has been waived by the defendant and the State, or if the defendant pleaded guilty, the sentencing hearing must be conducted before the judge.  In the sentencing hearing, the jury or judge shall hear only evidence related to whether the defendant was on pretrial release.  The State and the defense are permitted to present closing arguments.  If the appropriate fact finder, either jury or judge, finds beyond a reasonable doubt that the defendant was on pretrial release when the subsequent violent crime was committed or the defendant stipulates that the subsequent violent crime was committed while he was on pretrial release, the additional five-year penalty must be imposed.

    (E) For purposes of this section, violent crime is defined as the same as those contained in Section 16-1-60.

 

SECTION 2.  Section 17-15-15 of the S.C. Code is amended to read:

 

    Section 17-15-15.  (A) Except as provided in subsection (D), in lieu of requiring actual posting of bond as provided in subsection (A) of Section 17-15-10(A), the court setting bond may permit the defendant to deposit in cash with the clerk of court an amount not to exceed ten percent of the amount of bond set, which amount, when the defendant fulfills the condition of the bond, shall must be returned to the defendant by the clerk except as provided in subsection (C).

    (B) The cash deposit provided for in subsection (A) shall must be assignable at any time after it is posted with the clerk of court by written assignment executed by the defendant and delivered to the clerk.  After assignment and after the defendant fulfills the condition of his bond, the clerk shall return the cash deposit to the assignee thereof.

    (C) In the event the cash deposit is not assigned but the defendant is required by the court to make restitution to the victim of his crime, such the deposit may be used for the purpose of such restitution.

    (D) The provisions of this section do not apply if the defendant is charged with a violent crime as defined by Section 16-1-60 while out on bond or other pretrial release.  If the court, pursuant to the limitations of Section 17-15-30, finds that such defendant may be released pending trial, bond must be set at the full United States currency cash bond to the exclusion of all other forms of bond whether the bond is posted by the defendant or with a bondsman.

 

SECTION 3.  Section 17-15-55 of the S.C. Code is amended to read:

 

    Section 17-15-55.  (A)(1) The circuit courts, at their discretion, may review and reconsider bond for general sessions offenses set by summary court judges. Also, the circuit courts may consider motions regarding reconsideration of bond for general sessions offenses set by summary court judges upon motions filed with the clerks of court. Hearings on these motions must be scheduled. The rules of evidence do not apply to bond hearings.

       (2) After a circuit court judge has heard and ruled upon a defendant's motion to reconsider a bond set by a summary court judge, further defense motions to reconsider may be heard by the circuit court only upon the defendant's prima facie showing of a material change in circumstances which relate to the factors provided in Section 17-15-30, and which have arisen since the prior motion to reconsider. In addition, the circuit court may hear further defense motions to reconsider based on the length of time the defendant has been held for trial after six months. The chief judge shall schedule a hearing or if such showing is not set forth in the written motion, deny the motion for failure to make a prima facie showing of a material change in circumstances. Information regarding the defendant's guilt or innocence does not qualify as a change in circumstances for purposes of reconsidering bond absent the solicitor's consent.Notwithstanding another provision of law, nothing prevents a solicitor or the defendant from filing a motion for a speedy trial or requesting the court to set a date certain for trial based on the facts and circumstances in the case.

    (B)(1) Motions by the State to revoke or modify a bond must be made in writing, state with particularity the grounds for revocation or modification, and set forth the relief or order sought. The motions must be filed with the clerks of court, and a copy must be served on the chief judge, defense counsel of record, and bond surety, if any. The court must have a hearing and rule on the State's motion within thirty days of the filing.

       (2) After a circuit court judge has heard and ruled upon the state's motion to reconsider a bond set by a summary court judge, further state motions to reconsider may be heard by the circuit court only upon the state's prima facie showing of a material change in circumstances which have arisen since the prior motion to reconsider. The chief judge shall schedule a hearing or if such showing is not set forth in the written motion, deny the motion for failure to make a prima facie showing of a material change in circumstances.

       (3) If the state's motion to revoke or modify bond includes a prima facie showing of imminent danger to the community, imminent danger to the defendant, or flight by the defendant, the chief judge or presiding judge shall conduct or order an emergency bond hearing to be conducted by the circuit court judge within forty-eight hours of receiving service of the state's motion or as soon as practical. The chief judge shall order the solicitor to notify the defense counsel of record and bond surety of the time and date of the hearing, and the solicitor shall provide proof reasonable efforts were made to affect the notice. Upon notice by the State, the defense counsel of record and bond surety shall make reasonable efforts to notify the defendant of the emergency hearing. The court may proceed with the hearing despite the absence of the defendant or bond surety. The court may not proceed with the hearing if the defense counsel of record is not present. If an emergency bond hearing is held without the presence of the defendant and bond is revoked, the judge having heard the matter may conduct the hearing on the defendant's motion to reconsider the revocation. Defense motions to reconsider revocation must be filed with the clerk of court and served on the solicitor and bond surety.

    (C) If a person commits a violent crime, as defined in Section 16-1-60, which was committed when the person was already out on bond for a previous violent crime and the subsequent violent crime did not arise out of the same series of events as the previous violent crime, then the bond hearing for the subsequent violent crimeoriginal offense must be revoked and a hearing for the subsequent violent crime must be held in the circuit court within thirtyfourteen days. The court must issue findings of fact and conclusions of law addressing the revocation of bond, whether a new bond is issued for the previous offense as well as if bond is appropriate for the subsequent violent crime. If the court finds that certain conditions of release on bond will ensure that the person is unlikely to flee or pose a danger to any other person or the community and the person will abide by the terms of release on bond, the judge shall consider bond in accordance with the provisions of this chapter and set or amend bond accordingly Section 17-15-15(D) and under the condition that the defendant be placed on electronic monitoring. If the court finds no such conditions will ensure that the person is unlikely to flee or not pose a danger to the community, the court shall not set a bond for the instant offense and must revoke all previously set bonds.

    (D) If a person commits a violent crime, as defined in Section 16-1-60, which was committed when the person was already out on bond for a previous violent crime, and the subsequent violent crime did not arise out of the same series of events as the previous violent crime, then the arresting law enforcement agency must transmit notice of the second arrest, implicating subsection (C), to the solicitor of the circuit in which the crime was committed and the administrative chief judge of the circuit in which the crime was committed. The prosecuting agency must notify any victims of the initial or subsequent crimes pursuant to Chapter 3, Title 16 of any bond hearings.

    (E) For the purpose of bond revocation only, a summary court has concurrent jurisdiction with the circuit court for ten days from the date bond is first set on a charge by the summary court to determine if bond should be revoked.

 

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

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