Indicates Matter Stricken

Indicates New Matter

 

Committee Report

February 23, 2023

H. 3532

Introduced by Reps. G. M. Smith, Pope, McCravy, B. Newton, West, Chapman, Burns, Wooten, Haddon, O'Neal, Carter, W. Newton, M. M. Smith, Davis, Pace, B. L. Cox, Gilliam, Thayer, Bailey, Hardee, Blackwell, Leber and Mitchell

 

S. Printed 02/23/23--H.                                                                        [SEC 2/28/2023 12:48 PM]

Read the first time January 10, 2023

 

________

 

The committee on House Judiciary

To who was referred a Bill (H. 3532) to amend the South Carolina Code of Laws by adding Section 17-15-270 so as to provide sentencing enhancements for persons who commit certain additional crimes while, etc., respectfully

Report:

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, SECTION 1, by striking Section 17-15-270(A), (B), (C), and (D) and inserting:

    (A) If a person commits a subsequent violent crime while out on bond or other pretrial release for a previous violent charge, is charged and convicted of committing or attempting to commit the subsequent violent crime, he must be imprisoned for five years in addition to the punishment provided for the principal crime.  The five-year sentence does not apply in cases when the death penalty or a life sentence without parole is imposed for the violent crime.  For purposes of this subsection, a subsequent violent crime is one that occurs at a later date and time than the offense that resulted in the imposition of the bond or other pretrial release conditions.

    (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. The court  may impose  this mandatory five-year sentence to run consecutively.

    (C) Except as provided in this subsection, 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.

    (D) The additional punishment may not be imposed unless the State notifies the defense in writing of its intention to seek such penalty at least thirty days prior to the trial of the violent crime that occurred while on bond or other pretrial release. If the defendant is convicted of the violent crime that occurred while on bond or other pretrial release, the court must as soon as practicable thereafter conduct a separate sentencing hearing relating to the additional punishment.  Only evidence relating to whether the defendant was on pretrial release at the time the subsequent violent crime was committed may be considered in the sentencing hearing.  In the hearing, the State must prove beyond a reasonable doubt that the defendant was on pretrial release for some other charge at the time the subsequent violent crime was committed.  If the defendant was tried by jury, the same jury that found him guilty of the principal offense must serve for the sentencing hearing.  If trial by jury has been waived by the defendant and the State, or if the defendant pleaded guilty, the sentencing hearing must be conducted before the judge.  In the sentencing hearing, the jury or judge shall hear only evidence related to whether the defendant was on pretrial release.  The State and the defense are permitted to present closing arguments.  If the appropriate fact finder, either jury or judge, finds beyond a reasonable doubt that the defendant was on pretrial release when the subsequent violent crime was committed or the defendant stipulates that the subsequent violent crime was committed while he was on pretrial release, the additional five-year penalty must be imposed.

    (E) For purposes of this section, violent crime is defined as the same as those contained in Section 16-1-60.

Amend the bill further, by deleting SECTION 2.

Amend the bill further, SECTION 3, by striking Section 17-15-15(D) and inserting:

    (D) The provisions of this section do not apply if the defendant is charged with a violent crime as defined by Section 16-1-60 while out on bond or other pretrial release.  If the court, pursuant to the limitations of Section 17-15-30, finds that such defendant may be released pending trial, bond must be set at the full United States currency cash bond to the exclusion of all other forms of bond whether the bond is posted by the defendant or with a surety.

Amend the bill further, by adding appropriately numbered SECTIONS to read:

SECTION X. Section 17-15-55 of the S.C. Code is amended to read:

 

    Section 17-15-55.  (A)(1) The circuit courts, at their discretion, may review and reconsider bond for general sessions offenses set by summary court judges. Also, the circuit courts may consider motions regarding reconsideration of bond for general sessions offenses set by summary court judges upon motions filed with the clerks of court. Hearings on these motions must be scheduled. The rules of evidence do not apply to bond hearings.

       (2) After a circuit court judge has heard and ruled upon a defendant's motion to reconsider a bond set by a summary court judge, further defense motions to reconsider may be heard by the circuit court only upon the defendant's prima facie showing of a material change in circumstances which relate to the factors provided in Section 17-15-30, and which have arisen since the prior motion to reconsider. In addition, the circuit court may hear further defense motions to reconsider based on the length of time the defendant has been held for trial after six months. The chief judge shall schedule a hearing or if such showing is not set forth in the written motion, deny the motion for failure to make a prima facie showing of a material change in circumstances. Information regarding the defendant's guilt or innocence does not qualify as a change in circumstances for purposes of reconsidering bond absent the solicitor's consent.Notwithstanding another provision of law, nothing prevents a solicitor or the defendant from filing a motion for a speedy trial or requesting the court to set a date certain for trial based on the facts and circumstances in the case.

    (B)(1) Motions by the State to revoke or modify a bond must be made in writing, state with particularity the grounds for revocation or modification, and set forth the relief or order sought. The motions must be filed with the clerks of court, and a copy must be served on the chief judge, defense counsel of record, and bond surety, if any. The court must have a hearing and rule on the state's motion within thirty days of the filing.

       (2) After a circuit court judge has heard and ruled upon the state's motion to reconsider a bond set by a summary court judge, further state motions to reconsider may be heard by the circuit court only upon the state's prima facie showing of a material change in circumstances which have arisen since the prior motion to reconsider. The chief judge shall schedule a hearing or if such showing is not set forth in the written motion, deny the motion for failure to make a prima facie showing of a material change in circumstances.

       (3) If the state's motion to revoke or modify bond includes a prima facie showing of imminent danger to the community, imminent danger to the defendant, or flight by the defendant, the chief judge or presiding judge shall conduct or order an emergency bond hearing to be conducted by the circuit court judge within forty-eight hours of receiving service of the state's motion or as soon as practical. The chief judge shall order the solicitor to notify the defense counsel of record and bond surety of the time and date of the hearing, and the solicitor shall provide proof reasonable efforts were made to affect the notice. Upon notice by the State, the defense counsel of record and bond surety shall make reasonable efforts to notify the defendant of the emergency hearing. The court may proceed with the hearing despite the absence of the defendant or bond surety. The court may not proceed with the hearing if the defense counsel of record is not present. If an emergency bond hearing is held without the presence of the defendant and bond is revoked, the judge having heard the matter may conduct the hearing on the defendant's motion to reconsider the revocation. Defense motions to reconsider revocation must be filed with the clerk of court and served on the solicitor and bond surety.

    (C) If a person commits a violent crime, as defined in Section 16-1-60, which was committed when the person was already out on bond for a previous violent crime and the subsequent violent crime did not arise out of the same series of events as the previous violent crime, then the bond hearing for the subsequent violent crimeoriginal offense must be revoked and a hearing for the subsequent violent crime must be held in the circuit court within thirtyfourteen days. The court must issue findings of fact and conclusions of law addressing the revocation of bond, whether a new bond is issued for the previous offense as well as if bond is appropriate for the subsequent violent crime. If the court finds that certain conditions of release on bond will ensure that the person is unlikely to flee or pose a danger to any other person or the community and the person will abide by the terms of release on bond, the judge shall consider bond in accordance with the provisions of this chapter and set or amend bond accordingly Section 17-15-15(D) and under the condition that the defendant be placed on electronic monitoring. If the court finds no such conditions will ensure that the person is unlikely to flee or not pose a danger to the community, the court shall not set a bond for the instant offense and must revoke all previously set bonds.

    (D) If a person commits a violent crime, as defined in Section 16-1-60, which was committed when the person was already out on bond for a previous violent crime, and the subsequent violent crime did not arise out of the same series of events as the previous violent crime, then the arresting law enforcement agency must transmit notice of the second arrest, implicating subsection (C), to the solicitor of the circuit in which the crime was committed and the administrative chief judge of the circuit in which the crime was committed. The prosecuting agency must notify any victims of the initial or subsequent crimes pursuant to Chapter 3, Title 16 of any bond hearings.

    (E) For the purpose of bond revocation only, a summary court has concurrent jurisdiction with the circuit court for ten days from the date bond is first set on a charge by the summary court to determine if bond should be revoked.

 

SECTION X. Section 22-5-510(A) of the S.C. Code is amended to read:

 

    (A) Magistrates may admit to bail a person charged with an offense, except offenses the punishment of which is not death or imprisonment for life;  provided, however, with respect to or violent offenses as defined by the General Assembly pursuant to Section 15, Article I of the Constitution of South Carolina, 1895, magistrates may deny bail giving due weight to the evidence and to the nature and circumstances of the event, including, but not limited to, any charges pending against the person requesting bail. "Violent offenses" as used in this section means the offenses contained in Section 16-1-60. 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, in default whereof the person must be incarcerated. Nothing in this section should be read to exclude a motion to reconsider denial of bail to a circuit court.

Renumber sections to conform.

Amend title to conform.

 

WM. WESTON J. NEWTON for Committee.

 

________

 

 

 

 

 

 

 

 

 

A bill

 

to amend the South Carolina Code of Laws by adding Section 17-15-270 so as to PROVIDE SENTENCING ENHANCEMENTS FOR PERSONS WHO COMMIT CERTAIN ADDITIONAL CRIMES WHILE ON PRETRIAL RELEASE ON BOND; by adding Section 17-15-280 so as to PROHIBIT PRETRIAL RELEASE ON BOND FOR PERSONS CHARGED WITH COMMITTING CERTAIN ADDITIONAL CRIMES AND TO PROVIDE APPROPRIATE PROCEDURES FOR DETERMINING IF ADDITIONAL CHARGES ARE PENDING; and by amending Section 17-15-15, relating to the Deposit of a cash percentage in lieu of bond, so as to require a full cash bond for persons charged with certain crimes.

 

Be it enacted by the General Assembly of the State of South Carolina:

 

SECTION 1.  Chapter 15, Title 17 of the S.C. Code is amended by adding:

 

    Section 17-15-270. (A) A person must be punished by imprisonment for five years in addition to the punishment provided for the principal offense if he is on pretrial release on a personal recognizance or financial surety bond and he is convicted of committing or attempting to commit:

       (1) a violent crime as defined in Section 16-1-60;

       (2) criminal sexual conduct in the third degree pursuant to Section 16-3-654;

       (3) domestic violence in the first or second degree pursuant to Section 16-25-20;

       (4) common law strong arm robbery;

       (5) an offense involving weapons pursuant to Chapter 23, Title 16; or

       (6) an offense involving:

           (a) child pornography or disseminating obscene material to a person under the age of eighteen pursuant to Article 3, Chapter 15, Title 16;

           (b) failure to register as a sex offender on the Sex Offender Registry pursuant to the provisions of Article 7, Chapter 3, Title 23; or

           (c) failure to register as a child abuser on the Central Registry of Child Abuse and Neglect pursuant to the provisions of Subarticle 13, Article 3, Chapter 7, Title 63.

    (B) Service of the five-year sentence is mandatory unless a longer mandatory minimum term of imprisonment is provided by law. The court shall impose the mandatory five-year sentence to run consecutively. However, the five-year sentence does not apply in cases where the death penalty or a life sentence without parole is imposed.

    (C) A person sentenced pursuant to this section is not eligible during the five-year period of imprisonment for parole, work release, or extended work release. The five years must not be suspended, and the person may not complete the term of imprisonment in less than five years pursuant to good-time credits or work credits, but may earn credits during the five-year period.

    (D) The additional punishment may not be imposed unless in addition to the indictment for the principal general sessions offense outlined in subsection (A), a separate indictment alleges, pursuant to this section, that the person was on pretrial release subject to the terms of bond when the principal general sessions offense was committed and conviction was had upon this additional indictment. The penalties prescribed in this section may not be imposed unless the person convicted was at the same time convicted of the underlying, substantive general sessions offense as described in subsection (A).

 

SECTION 2.  Chapter 15, Title 17 of the S.C. Code is amended by adding:

 

    Section 17-15-280. (A) The court shall not set bond for a person who is on pretrial release on a personal recognizance, financial surety bond, or other form of pretrial release for:

       (1) an offense listed in Section 17-15-270(A) or for a person who has a prior conviction for one of these offenses and a period of not more than five years has elapsed since the date of conviction or the release of the person from imprisonment, whichever is later, and he is charged with committing another general sessions offense; or

       (2) a general sessions offense and he is charged with committing another offense listed in Section 17-15-270(A).

    (B) It is the responsibility of the judge presiding at the initial bond hearing to ensure that law enforcement provides a current criminal record detailing pending charges before bond is set or the charges are referred to the general sessions court for consideration of detention. The judge shall notify the solicitor and clerk of court as well as any attorney appointed or retained by the defendant. The chief administrative judge or his designee shall conduct an evidentiary hearing to address the matter of bond within thirty days.

       (1) If a preliminary hearing in the matter has not been held, the detention hearing also will serve as the defendant's preliminary hearing and alleviates the need for an additional hearing pursuant to Rule 2 of the South Carolina Rules of Criminal Procedure.

       (2) The rules concerning admissibility of evidence in criminal trials do not apply to the presentation and consideration of information at the detention hearing.

    (C) Subject to rebuttal by the defendant, it is presumed that no condition or combination of conditions will reasonably assure the appearance of the defendant as required and the safety of any other defendant and the community if the judge finds there is probable cause to believe that the defendant committed the instant crime. The presumption in favor of detention or revocation and against setting bond will not be rebutted unless the judge makes a finding that the defendant has shown by clear and convincing evidence that release on bail will not expose the public to danger and the defendant is not a flight risk.

       (1) In determining whether there are conditions of release that will reasonably assure the appearance of the defendant as required and the safety of any other defendant in the community, the court shall take into account the available information concerning:

           (a) the factors provided in Section 17-15-30; and

           (b) the weight of the evidence against the defendant.

       (2) The defendant must be afforded an opportunity to testify, to present witnesses, to cross-examine witnesses who appear at the hearing, and to present information by proffer or otherwise.

    (D) Defense motions for reconsideration of orders issued pursuant to this section may be heard only upon a prima facie showing of a material change in circumstances which relate to the factors provided in Section 17-15-30, and which have arisen since the detention hearing. The length of time the defendant has been detained pretrial does not qualify as a material change in circumstances qualifying for a reconsideration of bond or detention ordered pursuant to this section unless the defendant has been detained for more than eighteen months and the defendant is seeking a speedy trial. Information regarding the defendant's guilt or innocence does not qualify as a change in circumstances for purposes of reconsidering bond absent the solicitor's consent.

 

SECTION 3.  Section 17-15-15 of the S.C. Code is amended to read:

 

    Section 17-15-15.  (A) Except as provided in subsection (D), in lieu of requiring actual posting of bond as provided in subsection (A) of Section 17-15-10(A), 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 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).

    (B) The cash deposit provided for in subsection (A) shall must be 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 return the cash deposit to the assignee thereof.

    (C) In the event 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 restitution.

    (D) The provisions of this section do not apply if the defendant is charged with an offense listed in Section 17-15-270(A).  If the court, pursuant to the limitations of Section 17-15-30, finds that such defendant may be released pending trial, bond must be set at the full United States currency cash bond to the exclusion of all other forms of bond.

 

SECTION 4.  This act takes effect upon approval by the Governor.

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