H 3989 Session 110 (1993-1994)
H 3989 General Bill, By J.J. Snow
A Bill to amend the Code of Laws of South Carolina, 1976, by adding Section
50-11-735 so as to provide for disposition of forfeited property by the South
Carolina Wildlife and Marine Resources Department; to amend Section 50-11-540,
relating to penalties for violations pertaining to turkey hunting, so as to
increase penalties and revise the forfeiture provisions; to amend Section
50-11-730, relating to hunting, shooting, or killing deer from a water
conveyance so as to change the references to "shoot" and "kill" to "take" and
"attempt to take", delete the definition of "hunt", and provide a procedure
for forfeiture and disposition of property; to amend Section 50-13-1196,
relating to the confiscation of property used in a violation of provisions
protecting fish, so as to change the references to the Sections pertaining to
the sale of the property and revise the provisions for disposition of the
proceeds; to amend Section 50-17-615, relating to the lawful area and time to
trawl for shrimp or prawn, so as to revise the reference to the areas always
closed to trawling; to amend Section 50-17-650, relating to the penalties for
shrimp trawling violations, so as to provide a procedure for forfeiture and
disposition of property; and to amend Section 50-19-2220, relating to
violations for rifle use for certain waters of the Savannah River, so as to
change the reference to the Section pertaining to sale of confiscated rifles.
04/14/93 House Introduced and read first time HJ-22
04/14/93 House Referred to Committee on Agriculture, Natural
Resources and Environmental Affairs HJ-22
A BILL
TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976,
BY ADDING SECTION 50-11-735 SO AS TO PROVIDE FOR
DISPOSITION OF FORFEITED PROPERTY BY THE SOUTH
CAROLINA WILDLIFE AND MARINE RESOURCES
DEPARTMENT; TO AMEND SECTION 50-11-540, RELATING TO
PENALTIES FOR VIOLATIONS PERTAINING TO TURKEY
HUNTING, SO AS TO INCREASE PENALTIES AND REVISE THE
FORFEITURE PROVISIONS; TO AMEND SECTION 50-11-730,
RELATING TO HUNTING, SHOOTING, OR KILLING DEER FROM
A WATER CONVEYANCE SO AS TO CHANGE THE
REFERENCES TO "SHOOT" AND "KILL" TO
"TAKE" AND " ATTEMPT TO TAKE",
DELETE THE DEFINITION OF "HUNT", AND PROVIDE
A PROCEDURE FOR FORFEITURE AND DISPOSITION OF
PROPERTY; TO AMEND SECTION 50-13-1196, RELATING TO
THE CONFISCATION OF PROPERTY USED IN A VIOLATION OF
PROVISIONS PROTECTING FISH, SO AS TO CHANGE THE
REFERENCES TO THE SECTIONS PERTAINING TO THE SALE
OF THE PROPERTY AND REVISE THE PROVISIONS FOR
DISPOSITION OF THE PROCEEDS; TO AMEND SECTION
50-17-615, RELATING TO THE LAWFUL AREA AND TIME TO
TRAWL FOR SHRIMP OR PRAWN, SO AS TO REVISE THE
REFERENCE TO THE AREAS ALWAYS CLOSED TO TRAWLING;
TO AMEND SECTION 50-17-650, RELATING TO THE PENALTIES
FOR SHRIMP TRAWLING VIOLATIONS, SO AS TO PROVIDE A
PROCEDURE FOR FORFEITURE AND DISPOSITION OF
PROPERTY; AND TO AMEND SECTION 50-19-2220, RELATING
TO VIOLATIONS FOR RIFLE USE FOR CERTAIN WATERS OF
THE SAVANNAH RIVER, SO AS TO CHANGE THE REFERENCE
TO THE SECTION PERTAINING TO SALE OF CONFISCATED
RIFLES.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. The 1976 Code is amended by adding:
"Section 50-11-735. (A) For purposes of this section, a
conviction for unlawfully taking, attempting to take, or possessing
wildlife is conclusive against the owner of property subject to forfeiture.
(B) Forfeited property not claimed or redeemed as provided in this
section may be retained by the department for official use, transferred to
other governmental agencies for official use, sold at public auction, or
disposed of according to law.
(C) If the department sells forfeited property, the sale must be at
public auction for cash to the highest bidder at a public place in the
county where the property was seized. Before the sale, the department
shall give at least thirty days notice to the former owner of the property
subject to forfeiture by certified mail and to the public by posting an
advertisement of the sale at the county courthouse and by publishing the
advertisement at least once in a newspaper of general circulation in the
county. Upon sale, the department first shall satisfy costs and expenses
of the seizure, advertisement, and sale including, but not limited to,
expenses incurred for the storage of the forfeited property. The net
proceeds must be placed on deposit with the State Treasurer and credited
to the Game Protection Fund.
(D) When forfeited property is valued at one thousand dollars or
more, the former owner may redeem it by paying one thousand dollars
to the department within thirty days after conviction. When forfeited
property is valued at less than one thousand dollars, the former owner
may redeem it by paying to the department the fair market value of the
property within thirty days after conviction. The amounts received by
the department must be placed on deposit with the State Treasurer and
credited to the Game Protection Fund.
(E) When the department seizes property subject to forfeiture, the
owner may redeem it before trial by paying to the department the fair
market value of the property or one thousand dollars, whichever is less,
if the property is not being held as evidence. Upon conviction, the
amount received by the department must be placed on deposit with the
State Treasurer and credited to the Game Protection Fund. If there is no
conviction, the amount received must be returned to the owner.
(F) When the department seizes property subject to forfeiture and
which is subject to a lien of record, it shall ascertain the fair market
value of the property. Upon conviction of the owner, an innocent
lienholder of record may claim the property upon proof of his status.
The person convicted shall pay the department the fair market value of
the property not to exceed one thousand dollars an item. The property
must be relinquished to the innocent lienholder of record. The amount
received by the department must be placed on deposit with the State
Treasurer and credited to the Game Protection Fund.
(G) If property is seized pursuant to this section and an innocent
person other than an innocent lienholder of record proves ownership in
the property, the department shall ascertain the fair market value of the
property. Upon conviction of the person from whom the property was
seized, the innocent person may claim the property upon proof of his
status, and the department immediately shall relinquish the property to
the innocent owner. The person convicted shall pay the department the
fair market value of the property not to exceed one thousand dollars an
item. The amount received by the department must be placed on deposit
with the State Treasurer and credited to the Game Protection Fund.
(H) If property is seized pursuant to this section and an innocent
person other than an innocent lienholder of record proves ownership in
the property, the department shall ascertain the fair market value of the
property. If the property is not being held as evidence, the department
immediately shall relinquish the property to the innocent owner. Upon
conviction of the person from whom the property was seized, he shall
pay the department the fair market value of the property not to exceed
one thousand dollars an item. The amount received by the department
must be placed on deposit with the State Treasurer and credited to the
Game Protection Fund.
(I) The division shall maintain a permanent record of all property
recovered pursuant to this section which must list the property
recovered, the position of the property, and the date of the
disposition."
SECTION 2. Section 50-11-540 of the 1976 Code is amended to read:
"Section 50-11-540. (A) Any A
person taking, attempting to take, or having in his possession turkey
illegally or taking, attempting to take, or killing turkey in any
a way not prescribed by the commission within the scope
of the commission's authority is guilty of a misdemeanor and, upon
conviction, must be fined not less than fifty dollars nor more
than one two hundred dollars or imprisoned for
not more than thirty days. Every vehicle, boat, animal, firearm, or other
equipment used in hunting turkeys in violation of Sections
50-11-500, 50-11-510, 50-11-520, and 50-11-530 or
in the possession of persons convicted of violations a
violation at the time of the violations violation is
forfeited to the State and may be confiscated by any a
peace officer who shall deliver the items to the department or its
designated agent pending disposition of the case.
(B) For purposes of this section, a conviction for unlawfully
hunting turkeys is conclusive as against any a
convicted owner of the above mentioned property in this
section, and devices confiscated must be ordered forfeited.
In all other instances forfeiture is accomplished by the initiation
by the State of an action in the circuit court in the county in which the
property was seized giving notice to owners of record and lienholders of
record or other persons having claimed an interest in the property subject
to forfeiture and an opportunity to appear and show, if they can, why the
property should not be forfeited and disposed of as provided for by this
section. Failure of any person claiming an interest in the property to
appear at the above proceeding after having been given notice of the
proceeding constitutes a waiver of his claim and the property is forfeited
immediately to the State.
Notice of the above proceedings is accomplished by: (a) personal
service of the owner of record or lienholder of record by certified copy
of the petition or notice of hearing or (b) in the case of property for
which there is no owner or lienholder of record, publication of notice in
a newspaper of local circulation in the county where the property was
seized for at least two successive weeks before the hearing.
(C) Property constituted forfeited property by this section
must be sold disposed of under the same
procedure prescribed in Section 50-11-740
50-11-735.
SECTION 3. Section 50-11-730 of the 1976 Code is amended to read:
"Section 50-11-730. (A) It is unlawful for
any a person to hunt, shoot, or in any way kill
take, or attempt to take deer from a motorboat, raft, or other
water conveyance or to molest deer while any a part of
the deer is in the water. Any A person violating the
provisions of this section is guilty of a misdemeanor and, upon
conviction, must be imprisoned for not less than thirty
days nor more than ninety days or be fined not less than
one hundred dollars nor more than five hundred dollars.
`Hunting', as used in this section in reference to a vehicle, boat, or
device, includes the transportation of a hunter to or from the place of
hunting in violation of this section, or the transportation of the carcass
of a deer, or any part of a deer, which has been unlawfully hunted or
killed in violation of this section.
(B) In addition to the penalty herein in this
section, every boat, raft, or other water conveyance, vehicle, animal,
firearm, and any other device being used in the violation
of this section must be confiscated seized and
delivered to the department pursuant to Section 50-11-735.
For purposes of this section, a conviction for unlawfully hunting
deer from boats or other water conveyances is conclusive as against any
convicted owner of the above-mentioned property. In all other cases,
the forfeiture and sale is accomplished by the procedure set forth in
Section 50-11-740."
SECTION 4. Section 50-13-1196 of the 1976 Code is amended to
read:
"Section 50-13-1196. (A) In addition to any a
specific penalty provided in this article, any a
fish or fishing device taken or found to be in possession of any
a person charged with a violation of this article shall
must be confiscated. The fish shall must be
sold in the same manner as prescribed in Section 50-11-3940
50-17-650 for the sale of perishable items. If the person charged
is convicted, the money received from such the sale
shall must be forwarded to the department,
and placed on deposit with the State Treasurer, and
credited to the account of the Game Protection Fund of
the State Treasury. After conviction the fishing devices shall
must be sold at public auction. The sale of the fish and
fishing devices shall must be conducted using the
procedures prescribed in Section 50-11-2080
50-11-735. If such the person is acquitted the
devices shall must be returned to him along with
any money monies that may have come from the sale of
the confiscated fish.
(B) In addition to the specific penalties provided in this
article and the penalties provided in subsection (A) of this
section, the boat, motor, and fishing gear of any
a person who is charged with unlawfully using or having in
possession a gill net or hoop net on any a freshwater
lake or reservoir of the State shall must be confiscated
and sold at auction within the State after conviction using the procedure
prescribed in Section 50-11-2080 50-11-735.
The money received from such the sale shall
must be forwarded to the department, and
placed on deposit with the State Treasurer, and credited to the
account of the Game Protection Fund of the State
Treasury. If such the person is acquitted,
the boat, motor, and fishing gear shall must be
returned to him. Upon conviction, the department shall suspend
such the person's license or privilege to fish in this State
for a period of one year from the date of conviction.
(C) In addition to the specific penalties provided in this
article or the general provisions of Sections 50-13-1610 and 50-13-1650,
upon the conviction of any a commercial freshwater
fisherman of illegal possession of game fish or the sale or traffic in game
fish, the department shall suspend such person's his
license or privilege to fish in this State for a period of one year
from the date of conviction."
SECTION 5. The first five lines of Section 50-17-615 of the 1976
Code are amended to read:
"In addition to the area outlined in Section 50-17-610,
from August fifteenth to December fifteenth, both inclusive,
except in that area outlined in item by items
(1), of this section wherein the period is from September
first to November first, inclusive (2), (3), and (4) which always
are closed to trawling under Section 50-17-618, it is lawful to trawl
for shrimp or prawn:"
SECTION 6. Section 50-17-650 of the 1976 Code is amended by
adding at the end:
"If evidence convinces the court that the property or equipment
used by persons in violation of this article which call for the
confiscation, sale, or redemption of equipment used in violation belongs
to a person not charged with a violation, the department shall ascertain
the fair market value of the equipment or property, and, upon conviction,
the court shall order the violator to pay to the department, unless the
section provides for specific sums, the fair market value of the property
or equipment, not to exceed one thousand dollars an item; or if convicted
of illegal trawling, five thousand dollars. This amount may be used by
the department for the protection of marine resources. The civil penalty
must be imposed at the time of sentence and is in addition to a criminal
penalty imposed. The property or equipment must be returned to the
owner.
A lienholder must be notified of the public sale and the interest of the
lienholder must be satisfied by the sale. If the cost of satisfying the lien
cannot be obtained by public sale, the former owner shall pay the fair
market value of the equipment or property up to one thousand dollars,
and the property or equipment must be turned over to the valid
lienholder."
SECTION 7. Section 50-19-2220 of the 1976 Code is amended to
read:
"Section 50-19-2220. In the waters of the Savannah River
between the Stevens Creek Dam and the highway bridge between
Calhoun Falls, South Carolina, and Elberton, Georgia, including the
waters impounded by the Stevens Creek Dam and the Clark Hill Dam,
all in Game Zone 2, no person shall may have
any a rifle in his possession in any a
boat nor shall any may a person fire a rifle within one
hundred yards from the shoreline of such the waters.
Any rifles being A rifle used in violation of this section
shall must be confiscated and sold at public auction
under the procedure provided in Section 50-11-2080
50-11-735."
SECTION 8. This act takes effect upon approval by the Governor.
-----XX----- |