1 South Carolina General Assembly 2 116th Session, 2005-2006 3 4 S. 708 5 6 STATUS INFORMATION 7 8 General Bill 9 Sponsors: Senators McConnell, Leatherman, Land, Thomas, Drummond, Alexander and Hawkins 10 Document Path: l:\council\bills\ms\7385ahb05.doc 11 Companion/Similar bill(s): 3539 12 13 Introduced in the Senate on April 6, 2005 14 Introduced in the House on May 17, 2005 15 Last Amended on May 11, 2005 16 Currently residing in the House Committee on Judiciary 17 18 Summary: Indigent Defense Commission 19 20 21 HISTORY OF LEGISLATIVE ACTIONS 22 23 Date Body Action Description with journal page number 24 4/6/2005 Senate Introduced and read first time SJ-4 25 4/6/2005 Senate Referred to Committee on Judiciary SJ-4 26 5/4/2005 Senate Committee report: Favorable with amendment Judiciary SJ-9 27 5/5/2005 Scrivener's error corrected 28 5/11/2005 Senate Amended SJ-21 29 5/11/2005 Senate Read second time SJ-21 30 5/12/2005 Senate Read third time and sent to House SJ-36 31 5/12/2005 Scrivener's error corrected 32 5/17/2005 House Introduced and read first time HJ-6 33 5/17/2005 House Referred to Committee on Judiciary HJ-6 34 35 36 VERSIONS OF THIS BILL 37 38 4/6/2005 39 5/4/2005 40 5/5/2005 41 5/11/2005 42 5/12/2005 43 1 Indicates Matter Stricken 2 Indicates New Matter 3 4 COMMITTEE AMENDMENT ADOPTED 5 May 11, 2005 6 7 S. 708 8 9 Introduced by Senators McConnell, Leatherman, Land, Thomas, 10 Drummond, Alexander and Hawkins 11 12 S. Printed 5/11/05--S. [SEC 5/12/05 2:15 PM] 13 Read the first time April 6, 2005. 14 15

1 [708-1] 1 2 3 4 5 6 7 8 9 A BILL 10 11 TO AMEND SECTION 8-13-770, AS AMENDED, CODE OF 12 LAWS OF SOUTH CAROLINA, 1976, RELATING TO THE 13 PROHIBITION ON MEMBERS OF THE GENERAL 14 ASSEMBLY SERVING ON BOARDS AND COMMISSIONS, 15 SO AS TO ADD THE COMMISSION ON INDIGENT 16 DEFENSE TO THE LIST OF EXCEPTIONS; TO AMEND 17 ARTICLE 3, CHAPTER 3, TITLE 17, RELATING TO THE 18 COMMISSION ON INDIGENT DEFENSE, SO AS TO REVISE 19 THE MEMBERSHIP OF THE COMMISSION, TO REVISE THE 20 DUTIES OF THE COMMISSION, THE OFFICE OF INDIGENT 21 DEFENSE, AND THE EXECUTIVE DIRECTOR OF THE 22 OFFICE OF INDIGENT DEFENSE, TO CREATE THE 23 DIVISION OF APPELLATE DEFENSE WITHIN THE OFFICE 24 OF INDIGENT DEFENSE, TO TRANSFER ALL DUTIES, 25 RIGHTS, AND OBLIGATIONS OF THE FORMER 26 COMMISSION AND OFFICE OF APPELLATE DEFENSE TO 27 THE DIVISION OF APPELLATE DEFENSE, TO PROVIDE 28 SPECIFICALLY FOR THE DUTIES AND OPERATION OF 29 THE DIVISION OF APPELLATE DEFENSE, AND TO REPEAL 30 CHAPTER 4, TITLE 17 RELATING TO THE COMMISSION 31 AND OFFICE OF APPELLATE DEFENSE. 32 Amend Title To Conform 33 34 Be it enacted by the General Assembly of the State of South 35 Carolina: 36 37 SECTION 1. Section 8-13-770 of the 1976 Code, as last amended 38 by Act 76 of 2003, is further amended to read: 39 40 “Section 8-13-770. A member of the General Assembly may not 41 serve in any capacity as a member of a state board or commission, 42 except for the State Budget and Control Board, the Advisory

1 [708] 1 1 Commission on Intergovernmental Relations, the Legislative Audit 2 Council, the Legislative Council, the Legislative Information 3 Systems, the Judicial Council, the Sentencing Guidelines 4 Commission, the Commission on Prosecution Coordination, the 5 South Carolina Tobacco Community Development Board, the 6 Tobacco Settlement Revenue Management Authority, the South 7 Carolina Transportation Infrastructure Bank, the Commission on 8 Indigent Defense, and the joint legislative committees.” 9 10 SECTION 2. Article 3, Chapter 3, Title 17 is amended to read: 11 12 “Article 3 13 14 Commission on Indigent Defense 15 16 Section 17 - 3 - 300. As used in this article: 17 (1) ‘Commission’ means the Commission on Indigent 18 Defense; 19 (2) ‘Division of Appellate Defense’ includes all attorneys 20 and employees in the division. 21 22 Section 17-3-310. (A) There is created the Commission on 23 Indigent Defense consisting of seven members appointed by the 24 Governor on the recommendation of the South Carolina Public 25 Defender Association as follows: fifteen members. 26 (B) Eleven members shall be appointed by the Governor as 27 follows: 28 (1) one member from each congressional district; appointed 29 upon recommendation of the South Carolina Public Defender 30 Association and 31 (2) one member from the State at large at - large appointed 32 upon the recommendation of the South Carolina Public Defender 33 Association who shall serve as chairman. 34 Members shall serve for terms of four years and until their 35 successors are appointed and qualify except that those first 36 appointed to represent the first, third, and fifth congressional 37 districts shall serve for a two-year term. Vacancies must be filled 38 in the manner of original appointment for the unexpired portion of 39 the term. No A person may not be appointed to the commission 40 pursuant to the provisions of this item or, once appointed pursuant 41 to the provisions of this item, may not continue to serve on the 42 commission unless the person is a public defender.

1 [708] 2 1 (2) A member of the South Carolina Bar appointed upon 2 recommendation by the president of the South Carolina Bar for the 3 term for which he is elected. 4 (3) A member of the South Carolina Trial Lawyers 5 Association appointed upon recommendation by the President of 6 the South Carolina Trial Lawyers Association for the term for 7 which he is elected. 8 (4) A member of the South Carolina Criminal Defense 9 Lawyers Association appointed upon the recommendation of the 10 President of the South Carolina Criminal Defense Lawyers 11 Association for the term for which he is elected. 12 (5) A member of the South Carolina Public Defender 13 Association appointed upon recommendation of the President of 14 the South Carolina Public Defender Association for the term for 15 which he is elected. 16 (C) The remaining four members must be appointed as follows: 17 (1) Two members appointed by the Chief Justice of the 18 South Carolina Supreme Court, one of whom must be a retired 19 circuit court judge and one of whom must be either a retired family 20 court judge or a retired appellate court judge, each of whom shall 21 serve for a term of four years and until a successor is appointed 22 and qualifies. 23 (2) The Chairmen of the Senate and House Judiciary 24 Committees, or their legislative designees, for the terms for which 25 they are elected. 26 (D) Members currently serving as of July 1, 2005, shall 27 continue to serve until the expiration of their term and may be 28 reappointed as provided in subsection (B)(1). 29 (B) (E)The commission may adopt an appropriate seal and 30 promulgate regulations consistent with the provisions of this article 31 to govern its operations and procedures and shall supervise the 32 operations of the Office of Indigent Defense including all the 33 divisions of the office. 34 (F) The commission: 35 (1) may establish divisions within the office to administer 36 the services and programs as it considers necessary to fulfill the 37 purposes of this article; 38 (2) shall develop rules, policies, procedures, regulations, and 39 standards as it considers necessary to carry out the provisions of 40 the article and comply with state law or regulations and the rules of 41 the Supreme Court, including the nature and scope of services to 42 be provided, the clientele to be served, and the establishment of

1 [708] 3 1 criteria to be used in the determination of indigency and 2 qualifications for services for indigent legal representation; and 3 (3) shall cooperate and consult with state agencies, 4 professional associations, and other groups concerning the causes 5 of criminal conduct, the rehabilitation and correction of persons 6 charged with and convicted of crimes, the administration of 7 criminal justice, and the improvement and expansion of defender 8 services. 9 10 Section 17-3-320. (A) There is created the Office of Indigent 11 Defense under the jurisdiction of the commission. The office must 12 be administered by an executive director appointed by the 13 commission together with such other administrative and clerical 14 staff as the commission considers necessary. The executive 15 director may hire other administrative, clerical, and legal staff and 16 is authorized to contract with outside consultants on behalf of the 17 office as he considers necessary to provide the services as required 18 pursuant to the provisions of this article. 19 (B) The executive director shall: 20 (1) administer and coordinate the operations of the office 21 and all divisions within the office and supervise compliance with 22 rules, procedures, regulations, and standards adopted by the 23 commission; 24 (2) maintain proper records of all financial transactions 25 related to the operation of the office; 26 (3) coordinate the services of the office with any federal, 27 county, private, or other programs established to provide assistance 28 to indigent persons entitled to representation pursuant to the 29 provisions of this chapter and consult with professional 30 organizations concerning the implementation and improvement of 31 programs for providing indigent services; and 32 (4) perform other duties as the commission assigns. 33 34 Section 17-3-330. (A) The Office of Indigent Defense shall: 35 (1) serve as the entity which distributes all funds 36 appropriated by the General Assembly for the defense of indigent 37 indigents, including funds allocated to counties’ public defender 38 offices pursuant to formula, funds for the defense of capital cases, 39 funds for attorney fees and expenses in noncapital cases, and other 40 funds appropriated for these purposes; 41 (2) perform those functions provided pursuant to Section 42 17 - 3 - 340;

1 [708] 4 1 (2)(3) perform those functions provided under pursuant to 2 Section 16-3-26(G); 3 (3)(4) serve as a resource for the compilation of accurate 4 statistical data covering the indigent defense system in this State; 5 (4)(5) implement other duties the commission may direct; 6 and 7 (5)(6) report annually to the General Assembly on the 8 indigent defense system. 9 (B) On or about June 30, 1994, and every year thereafter on 10 that date, if the Office of Indigent Defense determines, after taking 11 into consideration all outstanding obligations against the fund for 12 payment of attorney fees and expenses in noncapital cases, that 13 unexpended funds remain, these funds shall be rolled over into the 14 fund for payment of attorney fees and expenses in capital cases; 15 provided, however, this shall occur only in the event the funds in 16 the capital fund have been exhausted at that time. This fund shall 17 at no time exceed $2,750,000. 18 (C) Notwithstanding another provision of law, only attorneys 19 who are licensed to practice in this State and residents of this State 20 may be appointed by the court and compensated with funds 21 appropriated to the Death Penalty Trial Fund in the Office of 22 Indigent Defense. 23 24 Section 17 - 3 - 340. (A) There is created within the Office of 25 Indigent Defense, the Division of Appellate Defense. All of the 26 allied, advisory, affiliated, or related entities as well as the 27 employees, funds, property, and all contractual rights and 28 obligations associated with the commission and Office of 29 Appellate Defense formerly provided in Chapter 4, Title 17 are 30 transferred to and incorporated in and must be administered as part 31 of the Office of Indigent Defense. 32 (B) The division must be administered by a chief attorney. The 33 staff of the division shall consist of additional attorneys and 34 administrative, investigative, secretarial, and clerical employees 35 necessary to discharge the duties of the division. No person may 36 be hired to serve as an attorney who is not licensed to practice law 37 in this State. Attorneys employed by the division shall devote full 38 time to their duties and may not engage in the private practice of 39 law. 40 (C) The division shall carry out the following duties and 41 responsibilities: 42 (1) It shall represent any person, who the office determines, 43 subject to court review, falls within the guidelines promulgated

1 [708] 5 1 pursuant to Section 17 - 3 - 310(F)(2), who files Notice of Intention 2 to Appeal, or desires to appeal a conviction in any trial court, or 3 decision of any proceeding in civil commitment or other voluntary 4 placement in a state, county, or municipal facility. Any person 5 desiring representation by the division shall request a 6 determination of his indigency status in writing from the Supreme 7 Court, the court of appeals, the circuit or family court, or the 8 division. Any court receiving a request for indigent appellate 9 representation shall forward the request to the office who, within 10 ten days of the receipt of the request for representation, shall notify 11 the person requesting representation and the court in which the 12 appeal will be effected of its decision. 13 (2) Upon a finding that a person requesting representation 14 qualifies as an indigent and after being appointed as counsel for 15 such person by the court in which the appeal will be effected, the 16 division shall represent such person in his appeal of a conviction in 17 any trial court, or decision of any proceeding in civil commitment 18 or other involuntary placement in a state, county, or municipal 19 facility, provided nothing in this article requires the division to 20 pursue any appeal unless the chief attorney of the division is first 21 satisfied that there is arguable merit to the appeal. 22 (3) It shall represent indigents, other than at trial or 23 commitment proceedings when appointed by the court. 24 (4) It shall represent indigents in appeals of convictions in 25 trial courts of this State, or decisions of civil commitment 26 proceedings or other involuntary placement only in courts of this 27 State. 28 29 Section 17 - 3 - 350. The provisions of this article shall not 30 restrict any court in which an appeal is to be effected, from 31 appointing counsel for indigent persons when the division is 32 disqualified from representation for reasons of conflict or when the 33 division deems it advisable that it not provide representation for 34 the indigent person. 35 36 Section 17 - 3 - 360. The commission will be funded by 37 appropriations to the commission in the State General 38 Appropriations Act including such federal funds as may be 39 available.” 40 41 SECTION 3. Chapter 4, Title 17 is repealed. 42

1 [708] 6 1 SECTION 4. The Code Commissioner is authorized to change all 2 references in the code to the Commission of Appellate Defense to 3 the Commission on Indigent Defense and all references to the 4 Office of Appellate Defense to the Division of Appellate Defense. 5 6 SECTION 5. The repeal or amendment by this act of any law, 7 whether temporary or permanent or civil or criminal, does not 8 affect pending actions, rights, duties, or liabilities founded thereon, 9 or alter, discharge, release, or extinguish any penalty, forfeiture, or 10 liability incurred under the repealed or amended law, unless the 11 repealed or amended provision shall so expressly provide. After 12 the effective date of this act, all laws repealed or amended by this 13 act must be taken and treated as remaining in full force and effect 14 for the purpose of sustaining any pending or vested right, civil 15 action, special proceeding, criminal prosecution, or appeal existing 16 as of the effective date of this act, and for the enforcement of 17 rights, duties, penalties, forfeitures, and liabilities as they stood 18 under the repealed or amended laws. 19 20 SECTION 6. If any section, subsection, paragraph, subparagraph, 21 sentence, clause, phrase, or word of this act is for any reason held 22 to be unconstitutional or invalid, such holding shall not affect the 23 constitutionality or validity of the remaining portions of this act, 24 the General Assembly hereby declaring that it would have passed 25 this act, and each and every section, subsection, paragraph, 26 subparagraph, sentence, clause, phrase, and word thereof, 27 irrespective of the fact that any one or more other sections, 28 subsections, paragraphs, subparagraphs, sentences, clauses, 29 phrases, or words hereof may be declared to be unconstitutional, 30 invalid, or otherwise ineffective. 31 32 SECTION 7. This act takes effect on July 1, 2005. 33 ----XX---- 34

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