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S. 708
STATUS INFORMATION
General Bill
Sponsors: Senators McConnell, Leatherman, Land, Thomas, Drummond, Alexander and Hawkins
Document Path: l:\council\bills\ms\7385ahb05.doc
Companion/Similar bill(s): 3539
Introduced in the Senate on April 6, 2005
Introduced in the House on May 17, 2005
Last Amended on May 11, 2005
Currently residing in the House Committee on Judiciary
Summary: Indigent Defense Commission
HISTORY OF LEGISLATIVE ACTIONS
Date Body Action Description with journal page number
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4/6/2005 Senate Introduced and read first time SJ-4
4/6/2005 Senate Referred to Committee on Judiciary SJ-4
5/4/2005 Senate Committee report: Favorable with amendment Judiciary SJ-9
5/5/2005 Scrivener's error corrected
5/11/2005 Senate Amended SJ-21
5/11/2005 Senate Read second time SJ-21
5/12/2005 Senate Read third time and sent to House SJ-36
5/12/2005 Scrivener's error corrected
5/17/2005 House Introduced and read first time HJ-6
5/17/2005 House Referred to Committee on Judiciary HJ-6
View the latest legislative information at the LPITS web site
VERSIONS OF THIS BILL
4/6/2005
5/4/2005
5/5/2005
5/11/2005
5/12/2005
Indicates Matter Stricken
Indicates New Matter
COMMITTEE AMENDMENT ADOPTED
May 11, 2005
S. 708
Introduced by Senators McConnell, Leatherman, Land, Thomas, Drummond, Alexander and Hawkins
S. Printed 5/11/05--S. [SEC 5/12/05 2:15 PM]
Read the first time April 6, 2005.
TO AMEND SECTION 8-13-770, AS AMENDED, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO THE PROHIBITION ON MEMBERS OF THE GENERAL ASSEMBLY SERVING ON BOARDS AND COMMISSIONS, SO AS TO ADD THE COMMISSION ON INDIGENT DEFENSE TO THE LIST OF EXCEPTIONS; TO AMEND ARTICLE 3, CHAPTER 3, TITLE 17, RELATING TO THE COMMISSION ON INDIGENT DEFENSE, SO AS TO REVISE THE MEMBERSHIP OF THE COMMISSION, TO REVISE THE DUTIES OF THE COMMISSION, THE OFFICE OF INDIGENT DEFENSE, AND THE EXECUTIVE DIRECTOR OF THE OFFICE OF INDIGENT DEFENSE, TO CREATE THE DIVISION OF APPELLATE DEFENSE WITHIN THE OFFICE OF INDIGENT DEFENSE, TO TRANSFER ALL DUTIES, RIGHTS, AND OBLIGATIONS OF THE FORMER COMMISSION AND OFFICE OF APPELLATE DEFENSE TO THE DIVISION OF APPELLATE DEFENSE, TO PROVIDE SPECIFICALLY FOR THE DUTIES AND OPERATION OF THE DIVISION OF APPELLATE DEFENSE, AND TO REPEAL CHAPTER 4, TITLE 17 RELATING TO THE COMMISSION AND OFFICE OF APPELLATE DEFENSE.
Amend Title To Conform
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Section 8-13-770 of the 1976 Code, as last amended by Act 76 of 2003, is further amended to read:
"Section 8-13-770. A member of the General Assembly may not serve in any capacity as a member of a state board or commission, except for the State Budget and Control Board, the Advisory Commission on Intergovernmental Relations, the Legislative Audit Council, the Legislative Council, the Legislative Information Systems, the Judicial Council, the Sentencing Guidelines Commission, the Commission on Prosecution Coordination, the South Carolina Tobacco Community Development Board, the Tobacco Settlement Revenue Management Authority, the South Carolina Transportation Infrastructure Bank, the Commission on Indigent Defense, and the joint legislative committees."
SECTION 2. Article 3, Chapter 3, Title 17 is amended to read:
Section 17-3-300. As used in this article:
(1) 'Commission' means the Commission on Indigent Defense;
(2) 'Division of Appellate Defense' includes all attorneys and employees in the division.
Section 17-3-310. (A) There is created the Commission on Indigent Defense consisting of seven members appointed by the Governor on the recommendation of the South Carolina Public Defender Association as follows: fifteen members.
(B) Eleven members shall be appointed by the Governor as follows:
(1) one member from each congressional district; appointed upon recommendation of the South Carolina Public Defender Association and
(2) one member from the State at large at-large appointed upon the recommendation of the South Carolina Public Defender Association who shall serve as chairman.
Members shall serve for terms of four years and until their successors are appointed and qualify except that those first appointed to represent the first, third, and fifth congressional districts shall serve for a two-year term. Vacancies must be filled in the manner of original appointment for the unexpired portion of the term. No A person may not be appointed to the commission pursuant to the provisions of this item or, once appointed pursuant to the provisions of this item, may not continue to serve on the commission unless the person is a public defender.
(2) A member of the South Carolina Bar appointed upon recommendation by the president of the South Carolina Bar for the term for which he is elected.
(3) A member of the South Carolina Trial Lawyers Association appointed upon recommendation by the President of the South Carolina Trial Lawyers Association for the term for which he is elected.
(4) A member of the South Carolina Criminal Defense Lawyers Association appointed upon the recommendation of the President of the South Carolina Criminal Defense Lawyers Association for the term for which he is elected.
(5) A member of the South Carolina Public Defender Association appointed upon recommendation of the President of the South Carolina Public Defender Association for the term for which he is elected.
(C) The remaining four members must be appointed as follows:
(1) Two members appointed by the Chief Justice of the South Carolina Supreme Court, one of whom must be a retired circuit court judge and one of whom must be either a retired family court judge or a retired appellate court judge, each of whom shall serve for a term of four years and until a successor is appointed and qualifies.
(2) The Chairmen of the Senate and House Judiciary Committees, or their legislative designees, for the terms for which they are elected.
(D) Members currently serving as of July 1, 2005, shall continue to serve until the expiration of their term and may be reappointed as provided in subsection (B)(1).
(B) (E) The commission may adopt an appropriate seal and promulgate regulations consistent with the provisions of this article to govern its operations and procedures and shall supervise the operations of the Office of Indigent Defense including all the divisions of the office.
(F) The commission:
(1) may establish divisions within the office to administer the services and programs as it considers necessary to fulfill the purposes of this article;
(2) shall develop rules, policies, procedures, regulations, and standards as it considers necessary to carry out the provisions of the article and comply with state law or regulations and the rules of the Supreme Court, including the nature and scope of services to be provided, the clientele to be served, and the establishment of criteria to be used in the determination of indigency and qualifications for services for indigent legal representation; and
(3) shall cooperate and consult with state agencies, professional associations, and other groups concerning the causes of criminal conduct, the rehabilitation and correction of persons charged with and convicted of crimes, the administration of criminal justice, and the improvement and expansion of defender services.
Section 17-3-320. (A) There is created the Office of Indigent Defense under the jurisdiction of the commission. The office must be administered by an executive director appointed by the commission together with such other administrative and clerical staff as the commission considers necessary. The executive director may hire other administrative, clerical, and legal staff and is authorized to contract with outside consultants on behalf of the office as he considers necessary to provide the services as required pursuant to the provisions of this article.
(B) The executive director shall:
(1) administer and coordinate the operations of the office and all divisions within the office and supervise compliance with rules, procedures, regulations, and standards adopted by the commission;
(2) maintain proper records of all financial transactions related to the operation of the office;
(3) coordinate the services of the office with any federal, county, private, or other programs established to provide assistance to indigent persons entitled to representation pursuant to the provisions of this chapter and consult with professional organizations concerning the implementation and improvement of programs for providing indigent services; and
(4) perform other duties as the commission assigns.
Section 17-3-330. (A) The Office of Indigent Defense shall:
(1) serve as the entity which distributes all funds appropriated by the General Assembly for the defense of indigent indigents, including funds allocated to counties' public defender offices pursuant to formula, funds for the defense of capital cases, funds for attorney fees and expenses in noncapital cases, and other funds appropriated for these purposes;
(2) perform those functions provided pursuant to Section 17-3-340;
(2)(3) perform those functions provided under pursuant to Section 16-3-26(G);
(3)(4) serve as a resource for the compilation of accurate statistical data covering the indigent defense system in this State;
(4)(5) implement other duties the commission may direct; and
(5)(6) report annually to the General Assembly on the indigent defense system.
(B) On or about June 30, 1994, and every year thereafter on that date, if the Office of Indigent Defense determines, after taking into consideration all outstanding obligations against the fund for payment of attorney fees and expenses in noncapital cases, that unexpended funds remain, these funds shall be rolled over into the fund for payment of attorney fees and expenses in capital cases; provided, however, this shall occur only in the event the funds in the capital fund have been exhausted at that time. This fund shall at no time exceed $2,750,000.
(C) Notwithstanding another provision of law, only attorneys who are licensed to practice in this State and residents of this State may be appointed by the court and compensated with funds appropriated to the Death Penalty Trial Fund in the Office of Indigent Defense.
Section 17-3-340. (A) There is created within the Office of Indigent Defense, the Division of Appellate Defense. All of the allied, advisory, affiliated, or related entities as well as the employees, funds, property, and all contractual rights and obligations associated with the commission and Office of Appellate Defense formerly provided in Chapter 4, Title 17 are transferred to and incorporated in and must be administered as part of the Office of Indigent Defense.
(B) The division must be administered by a chief attorney. The staff of the division shall consist of additional attorneys and administrative, investigative, secretarial, and clerical employees necessary to discharge the duties of the division. No person may be hired to serve as an attorney who is not licensed to practice law in this State. Attorneys employed by the division shall devote full time to their duties and may not engage in the private practice of law.
(C) The division shall carry out the following duties and responsibilities:
(1) It shall represent any person, who the office determines, subject to court review, falls within the guidelines promulgated pursuant to Section 17-3-310(F)(2), who files Notice of Intention to Appeal, or desires to appeal a conviction in any trial court, or decision of any proceeding in civil commitment or other voluntary placement in a state, county, or municipal facility. Any person desiring representation by the division shall request a determination of his indigency status in writing from the Supreme Court, the court of appeals, the circuit or family court, or the division. Any court receiving a request for indigent appellate representation shall forward the request to the office who, within ten days of the receipt of the request for representation, shall notify the person requesting representation and the court in which the appeal will be effected of its decision.
(2) Upon a finding that a person requesting representation qualifies as an indigent and after being appointed as counsel for such person by the court in which the appeal will be effected, the division shall represent such person in his appeal of a conviction in any trial court, or decision of any proceeding in civil commitment or other involuntary placement in a state, county, or municipal facility, provided nothing in this article requires the division to pursue any appeal unless the chief attorney of the division is first satisfied that there is arguable merit to the appeal.
(3) It shall represent indigents, other than at trial or commitment proceedings when appointed by the court.
(4) It shall represent indigents in appeals of convictions in trial courts of this State, or decisions of civil commitment proceedings or other involuntary placement only in courts of this State.
Section 17-3-350. The provisions of this article shall not restrict any court in which an appeal is to be effected, from appointing counsel for indigent persons when the division is disqualified from representation for reasons of conflict or when the division deems it advisable that it not provide representation for the indigent person.
Section 17-3-360. The commission will be funded by appropriations to the commission in the State General Appropriations Act including such federal funds as may be available."
SECTION 3. Chapter 4, Title 17 is repealed.
SECTION 4. The Code Commissioner is authorized to change all references in the code to the Commission of Appellate Defense to the Commission on Indigent Defense and all references to the Office of Appellate Defense to the Division of Appellate Defense.
SECTION 5. The repeal or amendment by this act of any law, whether temporary or permanent or civil or criminal, does not affect pending actions, rights, duties, or liabilities founded thereon, or alter, discharge, release, or extinguish any penalty, forfeiture, or liability incurred under the repealed or amended law, unless the repealed or amended provision shall so expressly provide. After the effective date of this act, all laws repealed or amended by this act must be taken and treated as remaining in full force and effect for the purpose of sustaining any pending or vested right, civil action, special proceeding, criminal prosecution, or appeal existing as of the effective date of this act, and for the enforcement of rights, duties, penalties, forfeitures, and liabilities as they stood under the repealed or amended laws.
SECTION 6. If any section, subsection, paragraph, subparagraph, sentence, clause, phrase, or word of this act is for any reason held to be unconstitutional or invalid, such holding shall not affect the constitutionality or validity of the remaining portions of this act, the General Assembly hereby declaring that it would have passed this act, and each and every section, subsection, paragraph, subparagraph, sentence, clause, phrase, and word thereof, irrespective of the fact that any one or more other sections, subsections, paragraphs, subparagraphs, sentences, clauses, phrases, or words hereof may be declared to be unconstitutional, invalid, or otherwise ineffective.
SECTION 7. This act takes effect on July 1, 2005.
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