Senate Judiciary Committee Amendment
S 146 - Session 125 (2023-2024)
Sexually Violent Predators Act

The Committee on Judiciary proposes the following amendment (SJ-146.BM0003S):

Amend the bill, as and if amended, SECTION 1, by striking Section 44-48-30(13)(a) and inserting:

(a) a licensed psychiatrist or psychologist; or

Amend the bill further, SECTION 3, by striking Section 44-48-40(B) and inserting:

(B) If a person has been convicted of a sexually violent offense and the Board of Probation, Parole and Pardon Services or the Board of Juvenile Parole intends to grant the person a parole or the South Carolina Department of Corrections or the Board of Juvenile Parole intends to grant the person a conditional release or supervised reentry, then the parole, or the conditional release, or supervised reentry must be granted to be effective one hundred eighty days after the date of the order of parole, or conditional release, or supervised reentry. The Board of Probation, Parole and Pardon Services, the Board of Juvenile Parole, or the South Carolina Department of Corrections immediately must send notice of the parole, or conditional release, or supervised reentry of the person to the multidisciplinary team, the victim, and the Attorney General. If the person is determined to be a sexually violent predator pursuant to this chapter, then the person is subject to the provisions of this chapter even though the person has been released on parole, or conditional release, or supervised reentry. If at any time the person is determined to not be a sexually violent predator pursuant to this chapter, then the person shall be released pursuant to the order granting parole, or the order for conditional release or supervised reentry.

Amend the bill further, SECTION 5, by striking Section 44-48-80(D) and inserting:

(D) If the probable cause determination is made, then the court must direct that, upon completion of the criminal sentence, the person must be transferred to a local or regional detention facility pending the conclusion of the proceedings under this chapter. The court must further direct that the person be transported to an appropriate facility of the South Carolina Department of Mental Health for an evaluation as to whether the person is a sexually violent predator and must order the person to comply with all reasonable testing and assessments deemed necessary by a court-appointed qualified evaluator. The evaluation must be conducted by a qualified expert appointed by the court at the probable cause hearing. The expert court-appointed qualified evaluator must complete the evaluation within sixty ninety days after the Department of Mental Health provides written certification to the Attorney General's Office and the person's legal counsel that it has received all medical, psychological, criminal offense, and disciplinary records and reports concerning the person but not greater than one hundred eighty days after the probable cause order is filed completion of the probable cause hearing. The court may grant one extension upon the request of the court-appointed qualified evaluator expert and a showing of good cause. Any further extensions only may be granted for extraordinary circumstances. After the evaluation by the court-appointed qualified evaluator, if the person or the Attorney General seeks an independent evaluation by an independent qualified evaluator, pursuant to Section 44-48-90(C), then that evaluation must be completed within ninety days after receipt of the report by the court-appointed qualified evaluator. The court may grant an extension upon the request of the independent qualified evaluator and a showing of extraordinary circumstances. Any qualified evaluator who will be submitted as an expert at either a hearing or trial must submit a written report available to both parties.

Amend the bill further, SECTION 6, by striking Section 44-48-90(C) and inserting:

(C) Upon receipt of the evaluation issued by the court appointed expert as to whether the person is a sexually violent predator pursuant to Section 44-48-80(D), the person or the Attorney General may retain a qualified expert to perform a subsequent examination. If the court appointed qualified evaluator determines that the person is not a sexually violent predator, then the Attorney General, with notice to the person, may seek an independent evaluation pursuant to this section. If the court appointed qualified evaluator determines that the person is a sexually violent predator, then the person, with notice to the Attorney General, may seek an opinion by an independent qualified evaluator pursuant to this section. All examiners are permitted to have reasonable access to the person for the purpose of the examination, as well as access to all relevant medical, psychological, criminal offense, and disciplinary records and reports. In the case of an indigent person who requests would like an independent qualified evaluator expert of his own choosing, the indigent person must file and serve upon the Attorney General and the Commission on Indigent Defense a motion requesting payment and costs court must determine whether the services are necessary. The Attorney General shall have ten days from the date of service to file a response to the motion. If the court determines that the services are necessary and the expert's requested compensation for the independent qualified evaluator services is reasonable, then the court must assist the person in obtaining the authorize, in a written order prior to any fees or expenses being incurred, the person's attorney to obtain the services of an independent qualified evaluator expert to perform an evaluation examination or participate in the trial on the person's behalf and must authorize the payment from funds available to the Commission on Indigent Defense. All qualified evaluators are permitted to have reasonable access to the person for the purpose of the evaluation, as well as reasonable access to all relevant medical, psychological, criminal offense, and disciplinary records and reports. The court shall order must approve payment for the services upon the filing of a certified claim for compensation supported by a written statement specifying the time expended, services rendered, expenses incurred on behalf of the person to comply with any reasonable testing and assessments deemed necessary by the qualified evaluator for a thorough evaluation, and compensation received in the case or for the same services from any other source.

Amend the bill further, SECTION 8, by striking Section 44-48-110(A)(2) and inserting:

(2) The designated qualified evaluator's report must be provided to the clerk of the court in the jurisdiction that committed the resident pursuant to this chapter, the Attorney General, the solicitor who prosecuted the resident, and the resident. The resident is entitled to the assistance of counsel, and if the person is indigent, the court must appoint counsel designated by the Office of Indigent Defense to handle sexual predator cases to assist the person.

Amend the bill further, SECTION 8, by striking Section 44-48-110(B) and (C) and inserting:

(B) The resident person may retain or, if the resident person is indigent and so requests, the court may appoint a qualified evaluator expert to evaluate examine the resident person, and the resident's qualified evaluator expert must have reasonable access to all medical, psychological, criminal offense, and disciplinary, and treatment records and reports concerning the resident person. In the case of an indigent resident who seeks to retain a qualified evaluator, the indigent resident must file and serve upon the Attorney General and the Commission on Indigent Defense a motion requesting payment and costs. The Attorney General shall have ten days from the date of service to file a response to the motion. If, after considering the number and dates of the resident's prior requests for funding, the court determines the resident's request is reasonable, then the court must approve all reasonable expenses associated with the evaluation.

(C) The annual report must be provided to the court which committed the person pursuant to this chapter, the Attorney General, the solicitor who prosecuted the person, and the multidisciplinary team. The court must conduct an annual hearing to review the status of the committed person. The committed person is not prohibited from petitioning the court for release at this hearing.The Attorney General must serve upon the resident a copy of the annual report along with a notice of the right to request a hearing within sixty days of service. The resident must request a hearing in writing for the court to review the resident's status. If no request is made within sixty days of service, the resident's right to a hearing pursuant to this chapter is deemed waived.

Amend the bill further, SECTION 8, by striking Section 44-48-110(F) and inserting:

(F) If the court determines that probable cause exists to believe that the resident's person's mental abnormality or personality disorder has so changed that the resident person is safe to be at large and, if released, is not likely to commit acts of sexual violence, the court must schedule a trial on the issue. At the trial, the resident committed person is entitled to be present and is entitled to the benefit of all constitutional protections that were afforded the resident person at the initial commitment proceeding. The Attorney General must notify the victim of all proceedings. The Attorney General must represent the State and has the right to have the resident committed person evaluated by a qualified evaluator experts chosen by the State. The trial must be before a jury if requested in writing by either the resident person, the Attorney General, or the solicitor. If no request is made, the trial must be before a judge in the county where the offense was committed. The resident committed person also has the right to have a qualified evaluator experts evaluate the resident person on the resident's person's behalf, and the court must appoint an a qualified evaluator expert if the resident person is indigent and requests the appointment. The burden of proof at the trial is upon the State to prove beyond a reasonable doubt that the resident's committed person's mental abnormality or personality disorder remains such that the resident person is not safe to be at large and, if released, is likely to engage in acts of sexual violence.

Amend the bill further, SECTION 9, by striking Section 44-48-115(B) and inserting:

(B) Petitions shall be filed in the original jurisdiction of the South Carolina Supreme Court under the South Carolina Appellate Court Rules within one hundred eighty days of the date that any appeals from the commitment or periodic review proceedings are final. Upon the receipt of the petition, the Clerk of Court of the Supreme Court shall issue an order designating a circuit court or appellate court judge as a referee to make appropriate findings of fact and conclusions of law and shall report the findings and conclusions to the Supreme Court. The designated judge shall have the statewide authority to issue orders as necessary.

Amend the bill further, SECTION 9, by striking Section 44-48-115(E) and inserting:

(E) Upon the filing of a petition alleging that the resident is indigent and desires appointed counsel, the designated judge shall appoint an attorney to represent the resident. Counsel shall be appointed from the contract attorney list of post-conviction counsel maintained by the South Carolina Commission on Indigent Defense, or such other list of attorneys as the Executive Director of the South Carolina Commission on Indigent Defense shall designate. If no attorney is available from this list, then the designated circuit court judge shall appoint an attorney from the Appointment of Lawyers for Indigents. The designated judge shall not appoint an attorney who previously represented the resident in any prior criminal proceedings underlying the commitment or state post-conviction relief proceedings or appeals from those proceedings, in the original sexually violent predator civil commitment proceeding or appeal from that proceeding, or in any previous or present periodic reviews or appeals therefrom.

Amend the bill further, SECTION 9, by striking Section 44-48-115(I) and inserting:

(I) Within thirty days of an assignment, the designated judge shall issue a scheduling order, including a discovery schedule, and shall set a hearing within not more than one hundred eighty days from the filing of the petition. A final report to the Supreme Court shall be submitted within thirty days from the conclusion of the hearing, including findings of fact and conclusions of law supporting the designated judge's recommendation. This does not preclude the designated judge from recommending to the Supreme Court that the petition be denied on the basis of the pleadings without a hearing. The recommendation shall set forth the basis for dismissal.

Amend the bill further, SECTION 10, by striking Section 44-48-120(B) and inserting:

(B) The court, upon receipt of the petition for release filed pursuant to subsection (A), must order a hearing within thirty days unless the Attorney General, with notice to the resident, requests an examination evaluation by a qualified expert evaluator as to whether the petitioner's resident's mental abnormality or personality disorder has so changed that the resident petitioner is safe to be at large and, if released, is not likely to commit acts of sexual violence, or the resident petitioner or the Attorney General requests a trial before a jury. The Attorney General must represent the State and has the right to have the petitioner resident examined by a qualified experts evaluator chosen by the State. If the Attorney General retains a qualified expert who concludes that the petitioner's mental abnormality or personality disorder remains such that the petitioner is not safe to be at large and, if released, is likely to commit acts of sexual violence, the petitioner may retain a qualified expert of his own choosing to perform a subsequent examination. In the case of an indigent petitioner who would like an expert of his own choosing, the court must determine whether the services are necessary. If the court determines that the services are necessary and the expert's requested compensation for the services is reasonable, the court must assist the petitioner in obtaining the expert to perform an examination or participate in the hearing or trial on the petitioner's behalf. The court must approve payment for the services upon the filing of a certified claim for compensation supported by a written statement specifying the time expended, services rendered, expenses incurred on behalf of the petitioner, and compensation received in the case or for the same services from any other source. request an independent qualified evaluator, the indigent petitioner must file and serve upon the Attorney General and the Commission on Indigent Defense a motion requesting payment and costs for the evaluator. If the court determines that the services are necessary and the requested compensation is reasonable, then the court must authorize, in written order prior to any fees or expenses being incurred, the petitioner's attorney to obtain the services of an independent qualified evaluator to perform an evaluation or participate in the trial on the petitioner's behalf and authorize the payment from funds available to the Commission on Indigent Defense. All qualified evaluators are permitted to have reasonable access to the resident for the purpose of the examination, as well as reasonable access to all relevant medical, psychological, criminal offense, and disciplinary records and reports, and the court shall order the resident to comply with any reasonable testing and assessments deemed necessary by a qualified evaluator. The burden of proof is upon the Attorney General to show beyond a reasonable doubt that the resident's petitioner's mental abnormality or personality disorder remains such that the resident petitioner is not safe to be at large and, that if released, is likely to commit acts of sexual violence.