H 3568 Session 111 (1995-1996)
H 3568 General Bill, By H.G. Hutson, B.D. Cain, Carnell, Cato, J.L.M. Cromer,
Dantzler, Davenport, Easterday, Fair, R.C. Fulmer, Gamble, H.M. Hallman,
J.L. Harris, Haskins, M.H. Kinon, Lanford, Law, L.H. Limbaugh, Limehouse,
C.V. Marchbanks, McCraw, Meacham, Phillips, Quinn, Rhoad, Riser, Seithel,
J.S. Shissias, Simrill, Stuart, Trotter, Vaughn, D.C. Waldrop, C.C. Wells,
Whatley, Whipper, Wilder, Witherspoon and S.S. Wofford
A Bill to amend Section 16-3-26, as amended, Code of Laws of South Carolina,
1976, relating to notice to defense attorneys of a solicitor's intention to
seek the death penalty, the appointment of attorneys, and the provision of
investigative, expert, and other services for indigents facing the death
penalty, so as to require the judicial department to satisfy outstanding
awards of attorney fees or expenses in death penalty cases upon the exhaustion
of funds provided by the Office of Indigent Defense, to revise the obligation
of the Office of Indigent Defense for payment of investigative, expert, and
other services, and to require the judicial department to develop biennially a
list of standard fees associated with the defense of an indigent person in a
death penalty case.
02/09/95 House Introduced and read first time HJ-26
02/09/95 House Referred to Committee on Ways and Means HJ-26
A BILL
TO AMEND SECTION 16-3-26, AS AMENDED, CODE OF
LAWS OF SOUTH CAROLINA, 1976, RELATING TO NOTICE
TO DEFENSE ATTORNEYS OF A SOLICITOR'S INTENTION
TO SEEK THE DEATH PENALTY, THE APPOINTMENT OF
ATTORNEYS, AND THE PROVISION OF INVESTIGATIVE,
EXPERT, AND OTHER SERVICES FOR INDIGENTS FACING
THE DEATH PENALTY, SO AS TO REQUIRE THE JUDICIAL
DEPARTMENT TO SATISFY OUTSTANDING AWARDS OF
ATTORNEY FEES OR EXPENSES IN DEATH PENALTY
CASES UPON THE EXHAUSTION OF FUNDS PROVIDED BY
THE OFFICE OF INDIGENT DEFENSE, TO REVISE THE
OBLIGATION OF THE OFFICE OF INDIGENT DEFENSE FOR
PAYMENT OF INVESTIGATIVE, EXPERT, AND OTHER
SERVICES, AND TO REQUIRE THE JUDICIAL DEPARTMENT
TO DEVELOP BIENNIALLY A LIST OF STANDARD FEES
ASSOCIATED WITH THE DEFENSE OF AN INDIGENT
PERSON IN A DEATH PENALTY CASE.
Be it enacted by the General Assembly of the State of South
Carolina:
SECTION 1. Section 16-3-26 of the 1976 Code, as last
amended by Section 45, Part II of Act 164 of 1993 (and as
amended for fiscal year 1994-95 by paragraph 14.1, Part IB of Act
497 of 1994), is further amended to read:
"Section 16-3-26. (A) Whenever When
the solicitor seeks the death penalty he shall notify the defense
attorney of his intention to seek such penalty at least thirty days
prior to before the trial of the case. At the request
of the defense attorney, the defense attorney shall
must be excused from all other trial duties ten days
prior to before the term of court in which the trial
is to be held.
(B) (1) Whenever any When a person
is charged with murder and the death penalty is sought, the court,
upon determining that such the person is
unable financially unable to retain adequate legal
counsel, shall appoint two attorneys to defend such
the person in the trial of the action. One of the
appointed attorneys so appointed shall must
have at least five years' experience as a licensed attorney and at
least three years' experience in the actual trial of felony cases, and
only one of the appointed attorneys so appointed
shall must be the Public Defender or a member of his
staff. In all cases where no conflict exists, the public defender or
member of his staff shall must be appointed if
qualified. If a conflict exists, the court shall then turn first to
the appoint contract public defender attorneys, if
qualified, before turning to the Office of Indigent Defense.
(2) Notwithstanding any other another
provision of law, the court shall order payment of all fees and
costs expenses from funds available to the Office of
Indigent Defense for the defense of an indigent.
Any The attorney appointed shall be
is compensated at a rate not to exceed fifty dollars an hour
for time expended out of court and seventy-five dollars an hour for
time expended in court. Compensation shall must
not exceed twenty-five thousand dollars and shall
must be paid from funds available to the Office of Indigent
Defense for the defense of an indigent represented by
court-appointed, private counsel.
(3) Upon exhaustion of funds available to the Office of
Indigent Defense for death penalty cases, outstanding awards of fees
and expenses are the obligation of the State from funds appropriated
to the Judicial Department in the annual general appropriations
act.
(C) (1) Upon a finding in ex parte proceedings that
investigative, expert, or other services are reasonably
are necessary for the representation of the defendant
whether in connection with issues relating to guilt or sentence, the
court shall authorize the defendant's attorneys to obtain such
services on behalf of the defendant and shall order the payment,
from funds available to the Office of Indigent Defense, of fees and
expenses not to exceed twenty-five hundred
thousand dollars as the court shall deem
considers appropriate. Payment of such fees and
expenses may be ordered in cases where the defendant is an
indigent represented by either court-appointed, private
counsel, or the public defender.
(2) Upon exhaustion of funds available to the Office of
Indigent Defense for death penalty cases, outstanding awards of fees
and expenses are the obligation of the State from funds appropriated
to the Judicial Department in the annual general appropriations
act.
(D) Payment in excess of the hourly rates and limit
limits in subsection (B) or (C) is authorized only if the
court certifies, in a written order with specific findings of fact, that
payment in excess of the rates is necessary to provide compensation
adequate to ensure effective assistance of counsel and payment in
excess of the limit is appropriate because the reasonable
and necessary services provided were reasonably and
necessarily incurred. Upon a finding that timely procurement
of such services cannot await prior authorization, the court may
authorize the provision of and payment for such services
nunc pro tunc.
(E) After completion of the trial, the court shall conduct a
hearing to review and validate the fees, costs, and other
expenditures on behalf of the defendant.
(F) The Judicial Department biennially shall develop
and make available to the public a list of standard fees and
expenses associated with the defense of an indigent person in a
death penalty case.
(F)(G) The Supreme Court shall promulgate
guidelines on the expertise and qualifications necessary for attorneys
to be certified as competent to handle death penalty cases.
(G)(H) The Office of Indigent Defense shall
maintain a list of death penalty qualified attorneys who have applied
for and received certification by the Supreme Court as provided
for herein. In the event If the court-appointed
counsel notifies the chief administrative judge in writing that he
or she does not wish to provide representation in a death
penalty case, the chief administrative judge shall advise the Office
of Indigent Defense which shall forward a name or names to the
chief administrative judge for consideration. The appointment
power is vested in the chief administrative judge. The Office of
Indigent Defense shall establish guidelines as are necessary
to ensure that attorneys' names are presented to the judges on a fair
and equitable basis taking into account geography and previous
assignments from the list. Efforts shall must be
made to present an attorney from the area or region where the
action is initiated."
SECTION 2. This act takes effect July 1, 1995.
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