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H. 3376
STATUS INFORMATION
General Bill
Sponsors: Reps. Lucas, Cooper, G.R. Smith, Bedingfield, Stavrinakis, J.R. Smith, Bowen, Ceips, Gambrell, Cotty, McLeod, Chalk, Haley and Hagood
Document Path: l:\council\bills\ms\7135ahb07.doc
Introduced in the House on January 30, 2007
Currently residing in the House Committee on Judiciary
Summary: Sexually violent predators
HISTORY OF LEGISLATIVE ACTIONS
Date Body Action Description with journal page number
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1/30/2007 House Introduced and read first time HJ-12
1/30/2007 House Referred to Committee on Judiciary HJ-13
2/6/2007 House Member(s) request name added as sponsor: G.R.Smith,
Bedingfield, Stavrinakis, J.R.Smith, Bowen
2/7/2007 House Member(s) request name added as sponsor: Ceips,
Gambrell, Cotty
2/8/2007 House Member(s) request name added as sponsor: McLeod
2/13/2007 House Member(s) request name added as sponsor: Chalk, Haley
2/15/2007 House Member(s) request name added as sponsor: Hagood
View the latest legislative information at the LPITS web site
VERSIONS OF THIS BILL
TO AMEND SECTIONS 44-48-100, 44-48-110, 44-48-120, AND 44-48-130, ALL AS AMENDED, RELATING TO THE COMMITMENT, TREATMENT, AND PERIODIC REVIEW OF PERSONS DETERMINED TO BE SEXUALLY VIOLENT PREDATORS, SO AS TO PROVIDE THAT THE RESPONSIBILITY FOR THE HOUSING, CONTROL, CARE, AND TREATMENT OF THESE PERSONS IS THE RESPONSIBILITY OF THE DEPARTMENT OF CORRECTIONS RATHER THAN THE DEPARTMENT OF MENTAL HEALTH.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Section 44-48-100 of the 1976 Code, as last amended by Act 176 of 2004, is further amended to read:
"Section 44-48-100. (A) The court or jury must determine whether, beyond a reasonable doubt, the person is a sexually violent predator. If a jury determines that the person is a sexually violent predator, the determination must be by unanimous verdict. If the court or jury determines that the person is a sexually violent predator, the person must be committed to the custody of the Department of Mental Health Corrections for control, care, and treatment until such time as the person's mental abnormality or personality disorder has so changed that the person is safe to be at large and has been released pursuant to this chapter. The control, care, and treatment must be provided at a facility operated by the Department of Mental Health Corrections. At all times, a person committed for control, care, and treatment by the Department of Mental Health Corrections pursuant to this chapter must be kept in a secure facility, and the person must be segregated at all times from other patients under the supervision of the Department of Mental Health. The Department of Mental Health may enter into an interagency agreement with the Department of Corrections for the control, care, and treatment of these persons. A person who is in the confinement of the Department of Corrections pursuant to an interagency agreement authorized by this chapter must be kept in a secure facility and must, if practical and to the degree possible, be housed and managed separately from offenders inmates in the custody of the Department of Corrections. If the court or jury is not satisfied beyond a reasonable doubt that the person is a sexually violent predator, the court must direct the person's release. Upon a mistrial, the court must direct that the person be held at an appropriate secure facility including, but not limited to, a local or regional detention facility until another trial is conducted. A subsequent trial following a mistrial must be held within ninety days of the previous trial, unless the subsequent trial is continued. The court or jury's determination that a person is a sexually violent predator may be appealed. The person must be committed to the custody of the Department of Mental Health Corrections pending his appeal.
(B) If the person charged with a sexually violent offense has been is found incompetent to stand trial and is about to be released and the person's commitment is sought pursuant to subsection (A), the court first shall hear evidence and determine whether the person committed the act or acts with which he is charged. The hearing on this issue must comply with all the procedures specified in this section. In addition, the rules of evidence applicable in criminal cases apply, and all constitutional rights available to defendants at criminal trials, other than the right not to be tried while incompetent, apply. After hearing evidence on this issue, the court must make specific findings on whether the person committed the act or acts with which he is charged; the extent to which the person's incompetence or developmental disability affected the outcome of the hearing, including its effect on the person's ability to consult with and assist counsel and to testify on the person's own behalf; the extent to which the evidence could be reconstructed without the assistance of the person; and the strength of the prosecution's case. If, after the conclusion of the hearing on this issue, the court finds beyond a reasonable doubt that the person committed the act or acts with which he is charged, the court must enter a final order, appealable by the person, on that issue, and may proceed to consider whether the person should be committed pursuant to this chapter."
SECTION 2. Section 44-48-110 of the 1976 Code, as last amended by Act 176 of 2004, is further amended to read:
"Section 44-48-110. A person committed pursuant to this chapter must have an examination of his mental condition performed once every year. The person may retain or, if the person is indigent and so requests, the court may appoint a qualified expert to examine the person, and the expert must have access to all medical, psychological, criminal offense, and disciplinary records and reports concerning the person. 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 Director of the Department of Mental Health Corrections must provide the committed person with an annual written notice of the person's right to petition the court for release over the director's objection; the notice must contain a waiver of rights. The director must forward the notice and waiver form to the court with the annual report. The committed person has a right to have an attorney represent him at the hearing, but the committed person is not entitled to be present at the hearing. If the court determines that probable cause exists to believe that the person's mental abnormality or personality disorder has so changed that the 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 committed person is entitled to be present and is entitled to the benefit of all constitutional protections that were afforded the 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 committed person evaluated by qualified experts chosen by the State. The trial must be before a jury if requested by either the person, the Attorney General, or the solicitor. The committed person also has the right to have qualified experts evaluate the person on the person's behalf, and the court must appoint an expert if the 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 committed person's mental abnormality or personality disorder remains such that the person is not safe to be at large and, if released, is likely to engage in acts of sexual violence."
SECTION 3. Section 44-48-120 of the 1976 Code, as last amended by Act 176 of 2004, is further amended to read:
"Section 44-48-120. If the Director of the Department of Mental Health Corrections determines that the person's mental abnormality or personality disorder has so changed that the person is safe to be at large and, if released, is not likely to commit acts of sexual violence, the director must authorize the person to petition the court for release. The petition must be served upon the court and the Attorney General. The Attorney General must notify the victim of the proceeding. The court, upon receipt of the petition for release, must order a hearing within thirty days. The Attorney General must represent the State and has the right to have the petitioner examined by experts chosen by the State. The hearing must be before a jury if requested by either the petitioner or the Attorney General. The burden of proof is upon the Attorney General to show beyond a reasonable doubt that the petitioner's mental abnormality or personality disorder remains such that the petitioner is not safe to be at large and, that if released, is likely to commit acts of sexual violence."
SECTION 4. Section 44-48-130 of the 1976 Code, as last amended by Act 176 of 2004, is further amended to read:
"Section 44-48-130. Nothing in this chapter prohibits a person from filing a petition for release pursuant to this chapter. However, if a person has previously filed a petition for release without the approval of the Director of the Department of Mental Health Corrections, and the court determined either upon review of the petition or following a hearing that the petitioner's petition was frivolous or that the petitioner's condition had not changed so that the petitioner continued to be a threat and, if released, would commit acts of sexual violence, the court must deny the subsequent petition unless the petition contains facts upon which a court could find the condition of the petitioner had so changed that a hearing was warranted. Upon receipt of a first or subsequent petition from a committed person without the director's approval, the court must, whenever possible, review the petition and determine if the petition is based upon frivolous grounds and, if so, must deny the petition without a hearing."
SECTION 5. 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 6. This act takes effect upon approval by the Governor.
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