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COMMITTEE REPORT
March 28, 2001
S. 96
Introduced by Senators Wilson, Courson, Richardson, Verdin, Mescher, McConnell, Reese and Branton
S. Printed 3/28/01--S.
Read the first time January 10, 2001.
To whom was referred a Bill (S. 96) to enact the "South Carolina Exile Act of 2001" including provisions to amend Section 16-23-50, as amended, Code of Laws of South Carolina, 1976, 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. This act may be cited as "The South Carolina Exile Act of 2001".
SECTION 2. Section 16-23-50(A)(1) of the 1976 Code is amended to read:
"(A)(1) A person, including a dealer, who violates the provisions of this article, except Section 16-23-20, is guilty of a felony and, upon conviction, must be fined not more than two thousand dollars or imprisoned not more than five years, or both. However, a person who violates the provisions of this article, except Section 16-23-20, and who was previously convicted of a violent crime as defined in Section 16-1-60, upon conviction, must be sentenced to a mandatory term of imprisonment of five years, no part of which may be suspended or probation granted, in addition for the punishment provided for the principal offense. A person sentenced to a mandatory term of imprisonment pursuant to this section is not eligible for parole or any early release program; nor is the person eligible to receive any work credits, education credits, good conduct credits, or any other credits that would reduce the mandatory term of imprisonment required by this section."
SECTION 3. Section 16-23-490 of the 1976 Code is amended to read:
"(A)(1) If a person is in possession of a firearm or visibly displays what appears to be a firearm or visibly displays a knife during the commission of a violent crime and is convicted of committing or attempting to commit a violent crime as defined in Section 16-1-60, he must be imprisoned sentenced to a mandatory term of imprisonment of five years, no part of which may be suspended or probation granted, in addition to the punishment provided for the principal crime offense. This five-year sentence does not apply in cases where the death penalty or a life sentence without parole is imposed for the violent crime.
(2) If a person is in possession of a firearm whether on his person or within his immediate access, or visibly displays what appears to be a firearm during the commission or attempted commission of the unlawful manufacture, sale, or distribution of a controlled substance, or during the possession of a controlled substance with the intent to distribute as defined in Section 44-53-370, he must be sentenced to a mandatory term of imprisonment of five years, no part of which may be suspended or probation granted, in addition to the punishment provided for the principal offense.
(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. A person sentenced to a mandatory term of imprisonment pursuant to this section is not eligible for parole or any early release program; nor is the person eligible to receive any work credits, education credits, good conduct credits, or any other credits that would reduce the mandatory term of imprisonment required by this section. The court may must impose this mandatory five-year sentence to run consecutively or concurrently to the sentence imposed for the principal offense.
(C) 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, but may earn credits during this period.
(D)(C) As used in this section, 'firearm' means any machine gun, automatic rifle, revolver, pistol, or any weapon which will can, or is capable of, or is designed to, or may readily be converted to expel a projectile; 'knife' means an instrument or tool consisting of a sharp cutting blade whether or not fastened to a handle which is capable of being used to inflict a cut, slash, or wound.
(E)(D)(1) The additional punishment may must not be imposed unless the indictment alleged as a separate count that the person was in possession of a firearm or visibly displayed what appeared to be a firearm or visibly displays displayed a knife during the commission of the violent crime and conviction was had upon this the person was convicted of this separate count in the indictment. The penalties prescribed in this section subsection (A)(1) may not be imposed unless the person convicted was at the same time indicted and convicted of a violent crime as defined in Section 16-1-60.
(2) The penalties prescribed in subsection (A)(2) must not be imposed unless the person convicted was at the same time indicted for and convicted of the offense of the unlawful manufacture, sale, or distribution of a controlled substance, or the offense of the possession of a controlled substance with intent to distribute as defined in Section 44-53-370.
(E)(1) The additional punishment penalties may must not be imposed unless the indictment alleged as a separate count that:
(a) the person was in possession of a firearm or visibly displayed what appeared to be a firearm or visibly displays displayed a knife during the commission of the violent crime and conviction was had upon this the person was convicted of this separate count in the indictment; or
(b) the person was in possession of a firearm whether on his person or within his immediate access, or visibly displayed what appeared to be a firearm during the commission or attempted commission of the unlawful manufacture, sale, or distribution of a controlled substance, or during the possession of a controlled substance with the intent to distribute as defined in Section 44-53-370 and the conviction was obtained on this count in the indictment.
(2) The penalties prescribed in this section may subsection (a) must not be imposed unless the person convicted was at the same time indicted for and convicted of a violent crime as defined in Section 16-1-60. The penalties prescribed in subsection (b) must not be imposed unless the person convicted was at the same time indicted and convicted of the offense of the unlawful
manufacture, sale, or distribution of a controlled substance, or the offense of the possession of a controlled substance."
SECTION 4. If any provision of this act or its application thereof to any person is held invalid, the invalidity does not affect other provisions or applications of the act which can be given effect without the invalid provision or application and, to this end the provisions of this act are severable.
SECTION 5. This act takes effect upon approval by the Governor and applies to offenses committed on or after the effective date. A person arrested, charged, or indicted under those provisions of law amended by this act must be tried and sentenced as provided by the law in force and effect at the time of the commission of the offense. /
Renumber sections to conform.
Amend title to conform.
Majority favorable. Minority unfavorable.
ADDISON G. WILSON CLEMENTA C. PINCKNEY
For Majority. For Minority.
$0 (No additional expenditures or savings are expected)
EXPLANATION OF IMPACT:
SC Department of Corrections
The department forecasts an increase in the number of inmates and an additional cost to the General Fund of the State with the passage of the proposed legislation. Specific sections of the bill that correspond to the agency's projected cost structure are Sections 16-23-490(A) & (B), 16-23-50(A)(1) and 16-23-490(E). The cost to house an inmate for one year is $15,101.
The following chart summarizes the fiscal impact of the bill projected through FY 2010:
Projected FY 2002 Projected FY 2005 Projected FY 2010
Section 16-23-490
(A) & (B) 0 4 46
"Concurrent Firearm @ $15,101 @ $15,101 @ $15,101
Penalties" $0 $60,404 $694,646
Section 16-23-50 6 37 65
(A)(1) @ $15,101 @ $15,101 @ $15,101
"Prior Violent" $90,606 $558,737 $981,565
Section 16-23-490 5 163 905
(E) @ $15,101 @ $15,101 @ $15,101
"Drug Related" $75,505 $2,461,463 $13,666,405
Total Projected 11 204 1,016
Increases: @ $15,101 @ $15,101 @ $15,101
$166,111 $3,080,604 $15,342,616
The department could not address the potential impact from Section 16-23-490(A)(1) relating to mandatory firearm enhancement for "prior felony" convictions because of even broader prosecutorial and judicial interpretation and discretion.
SC Office of Appellate Defense
The office forecasts an additional cost to the General Fund of the State with the passage of the proposed legislation. Specific sections of the bill that correspond to the agency's projected cost structure are Sections 2 & 3. The agency acknowledges that mandatory sentences reduce the likelihood of guilty pleas, thereby increasing trials and potential appellate issues. While no projection is rendered for an absolute count of increased caseload due to a lack of historical data, the agency does offer its per case cost structure to better understand the potential cost to the State. During fiscal year 1998-1999, Appellate Defense performed its duties at an average per case cost of $878. During fiscal year 1999-2000, that figure was $1,103. Averaging the prior two (2) years, Appellate Defense forecasts a cost structure of $991 per case for all increases in caseload as a result of the proposed legislation.
SC Judicial Department
The department states that there is not enough information available to estimate the number of cases that would come before the court should this bill be enacted. Based upon the current language any cost associated with the Exile Act of 2001 could be absorbed by the agency at its current level of funding. However, should the number of offenses increase beyond what the current pool of circuit court judges can absorb, additional judges would be needed. The cost associated with one additional judge and staff (administrative assistant, court reporter and law clerk) is approximately $314,428 for personal services and associated operating expenses and $26,620 of non-recurring cost for automation and furniture. The addition of new judges would also require more courtroom space, an expense borne by county government.
SC Commission on Indigent Defense
The commission noted an indeterminable fiscal impact to the General Fund of the State with the passage of the proposed legislation due to the agency's lack of historical data upon which to base its determination.
SC Commission on Prosecution Coordination
The commission forecasts a minimal fiscal impact to the General Fund of the State with the passage of the proposed legislation.
SC Department of Probation, Parole & Pardon
The department forecasts a minimal fiscal impact to the General Fund of the State with the passage of the proposed legislation.
State Law Enforcement Division (SLED)
According to SLED the criminal history of a person is already available to the magistrates, therefore, there will be no additional cost to the General Fund of the State if this bill is passed.
LOCAL GOVERNMENT IMPACT:
Passage of this bill would have a minimal fiscal impact on the Magistrate's and Municipal Courts which they can absorb within existing resources.
Approved By:
Don Addy
Office of State Budget
TO ENACT THE "SOUTH CAROLINA EXILE ACT OF 2001" INCLUDING PROVISIONS TO AMEND SECTION 16-23-50, AS AMENDED, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO PENALTIES FOR OFFENSES INVOLVING WEAPONS, SO AS TO PROVIDE INCREASED PENALTIES FOR AN OFFENDER WITH A PREVIOUS CONVICTION FOR A VIOLENT CRIME; TO AMEND SECTION 16-23-490, AS AMENDED, RELATING TO PENALTIES FOR POSSESSION OF A FIREARM DURING COMMISSION OF A VIOLENT CRIME, SO AS TO PROVIDE A SEPARATE OFFENSE FOR THE POSSESSION OF A FIREARM DURING AN OFFENSE INVOLVING A CONTROLLED SUBSTANCE AND TO PROVIDE A SEPARATE, MANDATORY MINIMUM TERM OF IMPRISONMENT UPON CONVICTION; TO AMEND SECTION 17-15-10, RELATING TO BAIL AND RECOGNIZANCE, SO AS TO ADD OTHER CONDITIONS OF RELEASE AND MAKE TECHNICAL CHANGES; TO AMEND SECTION 17-15-15, RELATING TO THE DEPOSIT OF CASH PERCENTAGE IN LIEU OF BOND, SO AS TO MAKE TECHNICAL CHANGES; TO AMEND SECTION 17-15-30, RELATING TO THE COURT'S CONSIDERATION OF CERTAIN FACTORS WHEN MAKING A BAIL DECISION, SO AS TO PROVIDE ADDITIONAL FACTORS AND TO REQUIRE THE COURT TO CONSIDER EACH FACTOR WHEN MAKING ITS DECISION; AND TO AMEND SECTION 22-5-510, AS AMENDED, RELATING TO BOND HEARINGS, SO AS TO PROVIDE ADDITIONAL OFFENSES FOR WHICH THE MAGISTRATE MAY DENY BAIL AND TO REQUIRE THE MAGISTRATE TO OBTAIN, WHEN FEASIBLE, THE PERSON'S CRIMINAL HISTORY FROM THE ARRESTING LAW ENFORCEMENT AGENCY BEFORE CONDUCTING THE BOND HEARING AND TO PROVIDE A DEFINITION OF CRIMINAL HISTORY.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. This act may be cited as the "South Carolina Exile Act of 2001".
SECTION 2. Section 16-23-50(A)(1) of the 1976 Code, as last amended by Act 184 of 1993, is further amended to read:
"(A)(1) A person, including a dealer, who violates the provisions of this article, except Section 16-23-20, is guilty of a felony and, upon conviction, must be fined not more than two thousand dollars or imprisoned not more than five years, or both. Provided, however, a person who violates the provisions of this article, except Section 16-23-20, and who was previously convicted of a violent crime as defined in Section 16-1-60, upon conviction, must be sentenced to a mandatory minimum term of imprisonment of five years, no part of which may be suspended or probation granted. A person sentenced to a mandatory minimum term of imprisonment pursuant to this section is not eligible for parole or any early release program, nor is the person eligible to receive any work credits, education credits, good conduct credits, or any other credits that would reduce the mandatory minimum term of imprisonment required by this section."
SECTION 3. Section 16-23-490(A) and (B) of the 1976 Code, as last amended by Act 184 of 1993, is further amended to read:
"(A)(1) If a person is in possession of a firearm or visibly displays what appears to be a firearm or visibly displays a knife during the commission of a violent crime and is convicted of committing or attempting to commit a violent crime as defined in Section 16-1-60, he must be imprisoned sentenced to a mandatory minimum term of imprisonment of five years no part of which may be suspended or probation granted, in addition to the punishment provided for the principal crime. This five-year sentence does not apply in cases where the death penalty or a life sentence without parole is imposed for the violent crime.
(2) It is a separate criminal offense for a person to be in possession of a firearm or visibly display what appears to be a firearm during the commission or attempted commission of the illegal manufacture, sale, distribution, purchase, or possession with intent to distribute a controlled substance. A person who violates the provisions of this subsection is guilty of a felony and, upon conviction, must be sentenced to a mandatory minimum term of imprisonment of five years, no part of which may be suspended or probation granted, in addition to the punishment provided for the principal crime.
(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. A person sentenced to a mandatory minimum term of imprisonment pursuant to this section is not eligible for parole or any early release program, nor is the person eligible to receive any work credits, education credits, good conduct credits, or any other credits that would reduce the mandatory minimum term of imprisonment required by this section. The court may shall impose this mandatory five-year sentence to run consecutively or concurrently to the punishment provided for the principal crime."
SECTION 4. Section 16-23-490(E) of the 1976 Code, as last amended by Act 184 of 1993, is further amended to read:
"(E)(1) The additional punishment punishments may not be imposed unless the indictment alleged as a separate count that:
(a) the person was in possession of a firearm or visibly displayed what appeared to be a firearm or visibly displays a knife during the commission of the violent crime and conviction was had upon this count in the indictment; or
(b) the person was in possession of a firearm or visibly displayed what appeared to be a firearm during the commission or attempted commission of the offense of the illegal manufacture, sale, distribution, purchase, or possession with intent to distribute a controlled substance and conviction was had upon this count in the indictment.
(2) The penalties prescribed in this section subsection (A)(1) may not be imposed unless the person convicted was at the same time indicted and convicted of a violent crime as defined in Section 16-1-60. The penalties prescribed in subsection (A)(2) may not be imposed unless the person convicted was at the same time indicted and convicted of the offense of the illegal manufacture, sale, distribution, purchase, or possession with intent to distribute a controlled substance."
SECTION 5. Section 17-15-10 of the 1976 Code is amended to read:
"Section 17-15-10. Any A person charged with a noncapital offense triable in either the magistrate's, county municipal, or circuit court, shall, at his appearance before any of such these courts, shall be ordered released pending trial on his own recognizance without surety in an amount specified by the court, unless the court determines in its discretion that such a release will not reasonably assure the appearance of the person as required, or unreasonable danger to the community will result. If such a that determination is made by the court, it may impose any one or more of the following conditions of release:
(a)(1) require the execution of an appearance bond in a specified amount with good and sufficient surety or sureties approved by the court;
(b)(2) place the person in the custody of a designated person or organization agreeing to supervise him;
(c)(3) place restrictions on the travel, association or place of abode of the person during the period of release;
(d)(4) impose any other conditions deemed considered reasonably necessary to assure appearance as required, including a condition that the person return to custody after specified hours; or
(e)(5) require the person to do any of the following:
(a) maintain employment or, if unemployed, actively seek employment;
(b) maintain or begin an educational program;
(c) avoid all contact with an alleged victim of the crime and with any potential witness who may testify concerning the offense;
(d) comply with a specified curfew;
(e) refrain from excessive use of alcohol or use of an illegal drug or a controlled substance not prescribed by a health care provider; or
(f) submit to testing for drugs and alcohol until final disposition of the case."
SECTION 6. Section 17-15-15 of the 1976 Code is amended to read:
"Section 17-15-15. (a)(A) In lieu of requiring actual posting of bond as provided in item (a)(1) of Section 17-15-10, 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 and that 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)(C).
(b)(B) The cash deposit provided for in subsection (a)(A) shall be is 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 must return the cash deposit to the assignee thereof.
(c)(C) In the event If 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 the restitution."
SECTION 7. Section 17-15-30 of the 1976 Code is amended to read:
"Section 17-15-30. In determining which conditions of release will reasonably assure appearance, or what release would constitute an unreasonable danger to the community, the court may, on the basis of available information, shall take into account:
(1) the nature and circumstances of the offense charged,;
(2) whether a firearm is alleged to have been used in the offense;
(3) the weight of the evidence;
(4) the accused's family ties, employment, financial resources, character, and mental condition,;
(5) the length of his residence in the community,;
(6) his record of convictions, and;
(7) any record of flight to avoid prosecution or failure to appear at other court proceedings;
(8) whether the person is likely to obstruct or attempt to obstruct justice or threaten, injure, or intimidate or attempt to threaten, injure, or intimidate a prospective witness, juror, or victim; and
(9) any other information available which the court considers relevant to the determination of whether the person is unlikely to appear for court proceedings or whether the person's release constitutes an unreasonable danger to the community."
SECTION 8. Section 22-5-510 of the 1976 Code, as last amended by Act 425 of 1998, is further amended to read:
"Section 22-5-510. (A) Magistrates may admit to bail a person charged with an offense, the punishment of which is not death or imprisonment for life; provided, however, with respect to violent offenses as defined by the General Assembly pursuant to Section 15, Article I of the Constitution of South Carolina, magistrates may deny bail giving due weight to the evidence and to the nature and circumstances of the event. 'Violent offenses' as used in this section means:
(1) the offenses contained in Section 16-1-60;
(2) the offenses contained in Section 16-23-50(A)(1);
(3) the offenses contained in Section 16-23-420(A) or (B); (4) the offenses contained in Section 16-23-490(A)(1) or (2); (5) the offenses contained in Sections 44-53-370, 44-53-375, 44-53-440, and 44-53-445 if the maximum term of imprisonment is ten years or more and the person was previously convicted of a like offense or if the person was previously convicted as a 'drug kingpin', as defined by Section 44-53-475;
(6) any felony if the person has been previously convicted of two or more offenses defined in Section 16-1-60 whether under the laws of this State or substantially similar laws of the United States; (7) the sexually violent offenses listed in Section 44-48-30(2) if the person has been previously convicted of an offense listed in that section and the magistrate finds probable cause to believe that the person who is currently charged with one of these offenses committed the offense charged; and
(8) any felony committed while the person is on release pending trial for a prior felony under federal or state law or on release pending imposition or execution of sentence or appeal of sentence or conviction.
(B) If a person under lawful arrest on a charge not bailable is brought before a magistrate, the magistrate shall commit the person to jail. If the offense charged is bailable, the magistrate shall take recognizance with sufficient surety, if it is offered, and in default whereof of which the person must be incarcerated. (B)(C) A person charged with a bailable offense must have a bond hearing within twenty-four hours of his arrest and must be released within a reasonable time, not to exceed four hours, after the bond is delivered to the incarcerating facility. Prior to conducting the bond hearing, the magistrate, to the extent feasible, shall obtain the person's criminal history from the arresting law enforcement agency.
(D) 'Criminal history' means records and data collected by the State Law Enforcement Division, the Federal Bureau of Investigation, and other law enforcement agencies consisting of identifiable descriptions and notations of arrests, detentions, indictments, convictions, or other formal charges."
SECTION 9. If any provision of this act or its application to any person is held invalid, the invalidity shall not affect other provisions or applications of the act which can be given effect without the invalid provision or application and, to this end, the provisions of this act are severable.
SECTION 10. This act takes effect upon approval by the Governor and applies to offenses committed on or after that date. A person arrested, charged, or indicted under those provisions of law amended by this act must be tried and sentenced as provided by the law in force at the time of the commission of the offense.
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