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COMMITTEE REPORT
February 27, 2008
S. 979
Introduced by Senators Anderson, Ford, Matthews, Land, Malloy, Reese, Pinckney, Scott, Patterson, Hutto, Short, Williams, Jackson, Grooms, Elliott, McGill, Drummond, Bryant and Hawkins
S. Printed 2/27/08--S.
Read the first time January 10, 2008.
To whom was referred a Bill (S. 979) to amend the Code of Laws of South Carolina, 1976, by adding Section 24-21-1010 so as to provide that certain persons who receive a pardon for the conviction, 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, pages 1 and 2, by striking SECTION 1 in its entirety and inserting:
/ SECTION 1. Article 11, Chapter 21, Title 24 of the 1976 Code is amended by adding:
"Section 24-21-1010. (A) If a person is convicted by the State of an offense and imprisoned subsequent to the conviction, and the conviction is reversed or vacated and a final judgment has been rendered, then the person may petition the court of general sessions to recover the monetary value of the loss the person sustained through the erroneous conviction and imprisonment.
(B) A person is not eligible for compensation pursuant to this section if the person:
(1) pled guilty to the offense, or to any lesser included offense, unless such guilty plea was withdrawn, vacated, or nullified;
(2) was convicted of any of the acts charged in conjunction with the offense;
(3) served the term of imprisonment concurrently with the sentence for the conviction of another crime; or
(4) is serving a term of imprisonment for the conviction of another crime.
(C) The petition must be filed within two years from the date on which the conviction was reversed or vacated. Persons convicted, imprisoned, and released from custody prior to the effective date of this act must file the petition for compensation within two years from the effective date of this act. The petition must include a statement of the facts upon which the claim is based and may be supported by affidavits that support the claim.
(D) The court, within thirty days of receiving the petition, shall set a time for a hearing and shall mail notice of this date to the claimant and the prosecutor's office under whose jurisdiction the person was prosecuted.
(E) At the hearing the claimant may introduce evidence in the form of affidavits or testimony to support the claim, and the prosecutor's office under whose jurisdiction the person was prosecuted may introduce counter affidavits or testimony in refutation.
(F) If the court finds by clear and convincing evidence that the claimant's conviction was reversed or vacated and a final judgment has been rendered, that the claimant was actually innocent, and that the claimant was imprisoned in connection with the alleged offense, the court shall award to the claimant an amount equal to fifteen thousand dollars for each year or the pro rata amount for the portion of each year of the imprisonment actually served, including any time spent awaiting trial. However, the compensation shall not exceed fifty thousand dollars. The court shall give written notice of its decision to all parties concerned.
(G) The determination of the court is subject to judicial review upon appeal of the claimant or the State to the South Carolina Court of Appeals.
(H) The State Treasurer shall pay the amount of the award to the claimant out of funds appropriated by the General Assembly for this purpose.
(I) A person awarded compensation pursuant to this section and who is subsequently convicted of a crime will not be eligible to receive any unpaid amounts from any compensation authorized by this section." /
Renumber sections to conform.
Amend title to conform.
JOHN D. HAWKINS for Committee.
EXPLANATION OF IMPACT:
The Department of Probation, Parole and Pardon Services indicates approximately 250 pardons are granted each year. However, the department states the vast majority of these pardons are for reasons other than specified in the bill. The Attorney General's Office reports that it could require as many as 12 additional staff if it had to prepare for a hearing for 250 cases annually. The recurring cost for 12 additional staff including other operating expense is estimated at $570,000. However, actual staffing needs would depend on the number of hearings for which the office would have to prepare and should be less that 250 annually. The Judicial Department indicates that enactment of this legislation will have a minimal impact that agency's expenditures which it can absorb at its current level of funding.
The number of cases that might be brought before the State upon enactment of this bill is not readily determinable. The impact on the General Fund of the State is at the General Assembly's discretion since the bill states that the "State Treasurer shall pay the amount of the award to the claimant out of funds appropriated". If it is the General Assembly's intent that a claimant be paid the amount of the award regardless of the amount appropriated then there is an undetermined liability on the state general fund.
SPECIAL NOTES:
Existing South Carolina Tort Claims Act statutes (sections 15-78-10 et seq.) address limitations on liability and the awarding of punitive damages.
Approved By:
Harry Bell
Office of State Budget
TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING SECTION 24-21-1010 SO AS TO PROVIDE THAT CERTAIN PERSONS WHO RECEIVE A PARDON FOR THE CONVICTION OF A CRIME MAY PETITION THE COURT OF APPEALS TO RECOVER THE MONETARY VALUE OF THE LOSS SUSTAINED THROUGH THEIR ERRONEOUS CONVICTION AND IMPRISONMENT.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Article 11, Chapter 21, Title 24 of the 1976 Code is amended by adding:
"Section 24-21-1010. (A) A person who is convicted of a crime, imprisoned subsequent to the conviction, and pardoned for the crime upon the grounds that the crime was not committed or was not committed by him may petition the Court of Appeals to recover the monetary value of the loss he sustained through his erroneous conviction and imprisonment.
(B) The petition must include a statement of the facts upon which the claim is based and may be supported by affidavits that support the claim. The court, within thirty days of receiving the petition, shall set a time for a hearing and shall mail notice of this date to the claimant and the Attorney General.
(C) At the hearing the claimant may introduce evidence in the form of affidavits or testimony to support the claim, and the Attorney General may introduce counter affidavits or testimony in refutation. If the court finds from the evidence that the claimant received a pardon of innocence for the reason that the crime was not committed, or was not committed by the claimant, and the claimant was imprisoned and has been vindicated in connection with the alleged offense for which he was imprisoned, the court shall award to the claimant an amount equal to twenty thousand dollars for each year or the pro rata amount for the portion of each year of the imprisonment actually served, including any time spent awaiting trial. However, the compensation shall not exceed five hundred thousand dollars. The State Treasurer shall pay the amount of the award to the claimant out of funds appropriated by the General Assembly for this purpose. The court shall give written notice of its decision to all parties concerned. The determination of the court is subject to judicial review upon appeal of the claimant or the State to the State Supreme Court."
SECTION 2. This act takes effect upon approval by the Governor.
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