§ 44-23-430 — Hearing on fitness to stand trial; effect of outcome.

South Carolina § 44-23-430

• Jurisdiction: South Carolina
• Title 44: HEALTH
• Ch. 23: PROVISIONS APPLICABLE TO BOTH MENTALLY ILL PERSONS AND PERSONS WITH INTELLECTUAL DISABILITY

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(A) Upon receiving the report of the designated examiners, the court shall set a date for and notify the person and his counsel of a hearing on the issue of his fitness to stand trial. If, in the judgment of the designated examiners or the superintendent of the facility if the person has been detained, the person is in need of hospitalization, the court with criminal jurisdiction over the person may authorize his detention in a suitable facility until the hearing. The person shall be entitled to be present at the hearings and to be represented by counsel. If upon completion of the hearing and consideration of the evidence the court finds that: (1) the person is fit to stand trial, it shall order the criminal proceedings resumed; or (2) the person is unfit to stand trial for the reasons set forth in Section 44-23-410 and is unlikely to become fit to stand trial in the foreseeable future, the solicitor responsible for the criminal prosecution shall initiate judicial admission proceedings pursuant to Sections 44-17-510 through 44-17-610 or Section 44-20-450 within fourteen days, excluding Saturdays, Sundays, and holidays, during which time the court may order the person hospitalized, may order the person to continue in detention if detained, or, if on bond, may permit the person to remain on bond; or (3) the person is unfit to stand trial but likely to become fit in the foreseeable future, the court shall order him to undergo restoration treatment by the Office of Mental Health for up to one hundred eighty days from the commencement of restoration treatment. If the person is in detention, the Office of Mental Health has the discretion to provide the restoration treatment in a hospital or detention facility. Restoration treatment shall only occur in a detention facility with the consent and approval of the sheriff or local government, whichever has lawful custody of the detention facility. If the person is on bond, the Office of Mental Health has the discretion to provide the restoration treatment in a hospital or on an outpatient basis. If the person is found to be unfit at the conclusion of the period of restoration treatment, the solicitor responsible for the criminal prosecution shall initiate judicial admission proceedings pursuant to Sections 44-17-510 through 44-17-610 or Section 44-20-450 within fourteen days, excluding Saturdays, Sundays, and holidays. (B) Subject to the provisions of Section 44-23-460, persons against whom criminal charges are pending and who are hospitalized in accordance with this article shall have all the rights and privileges of other involuntarily hospitalized persons. (C) Persons against whom criminal charges are pending but who are not involuntarily committed following judicial admission proceedings shall be released unless: (1) the person is charged with a violent crime or (2) the person is charged with a nonviolent crime and the solicitor files a motion to require bond for release. If the pending charge is a violent crime, a hearing must be held by the court in which the charges are pending, prior to release, on the issue of whether the person shall be released on bond with terms and conditions appropriate for the safety of the community and the well-being of the person. If the pending charge is a nonviolent crime, and the solicitor files a motion to require bond for release, a hearing may be held by the court in which the charges are pending to determine whether the person poses such a risk of danger to the community that he must not be released without bond. In addition to any terms or conditions of bond allowed under Section 17-15-10, the court must include terms or conditions of bond that are therapeutic in nature. Therapeutic terms and conditions may include, but not be limited to, a requirement that the person cooperate in any treatment indicated for their psychiatric or intellectual impairments, including the keeping of scheduled appointments, the taking of all prescribed medications, the abstaining from alcohol or illegal drug use, and a requirement that the person comply with random or scheduled drug screens to insure sobriety and medication compliance. For purposes of this subsection, "violent crime" means any offense included in Section 16-1-60.

Legislative History

HISTORY: 1962 Code SECTION 32-979; 1974 (58) 2642; 1977 Act No. 99, SECTION 16; 1997 Act No. 52, SECTION 2; 2006 Act No. 400, SECTION 3, eff September 29, 2006; 2011 Act No. 47, SECTION 5, eff June 7, 2011; 2022 Act No. 145 (H.3773), SECTION 2, eff April 25, 2022. Code Commissioner's Note At the direction of the Code Commissioner, certain references in the S.C. Code to the State Department of Mental Health, South Carolina Mental Health Commission, Department of Disabilities and Special Needs, Department of Disabilities and Special Needs Commission, Department of Alcohol and Other Drug Abuse Services, and other related terms were changed to reflect the restructuring of these agencies into component offices under the Department of Behavioral Health and Developmental Disabilities, pursuant to 2025 Act No. 3, SECTION 18. Effect of Amendment 2022 Act No. 145, SECTION 2, rewrote the section.