2023 South Carolina Code of Laws › Title 44 - Health › Chapter 48 - Sexually Violent Predator Act › Section 44-48-110. Evaluation of mental condition and related proceedings.

(A)(1) A resident committed pursuant to this chapter must have an evaluation of his mental condition performed by a Department of Mental Health-designated qualified evaluator within one year from the filing date of the initial commitment order. Thereafter, a Department of Mental Health-designated qualified evaluator will evaluate the resident's mental condition within one year after a pending review is resolved by a filed court order indicating:
(a) a finding of no probable cause;
(b) a waiver by the resident; or
(c) an order of continued commitment after a periodic review trial.
(2) The designated qualified evaluator's report must be provided to the clerk of the court in the jurisdiction that committed the resident pursuant to this chapter, the Attorney General, the solicitor who prosecuted the resident, and the resident. The resident is entitled to the assistance of counsel, and if the person is indigent, the court must appoint counsel designated by the Office of Indigent Defense to handle sexual predator cases to assist the person.
(B) The resident may retain or, if the resident is indigent and so requests, the court may appoint a qualified evaluator to evaluate the resident, and the resident's qualified evaluator must have reasonable access to all medical, psychological, criminal offense, disciplinary, and treatment records and reports concerning the resident. In the case of an indigent resident who seeks to retain a qualified evaluator, the indigent resident must file and serve upon the Attorney General and the Commission on Indigent Defense a motion requesting payment and costs. The Attorney General shall have ten days from the date of service to file a response to the motion. If, after considering the number and dates of the resident's prior requests for funding, the court determines the resident's request is reasonable, then the court must approve all reasonable expenses associated with the evaluation.
(C) The Attorney General must serve upon the resident a copy of the annual report along with a notice of the right to request a hearing within sixty days of service. The resident must request a hearing in writing for the court to review the resident's status. If no request is made within sixty days of service, the resident's right to a hearing pursuant to this chapter is deemed waived.
(D) The Department of Mental Health must provide the resident with written notice of the resident's right to petition the court for release without the Department of Mental Health's authorization and a waiver of rights form, within one year of the last periodic review order or waiver of rights. The department must forward the designated qualified evaluator's report with the notice and waiver form to the clerk of court in the jurisdiction that committed the resident pursuant to this chapter, the Attorney General, and the solicitor who prosecuted the resident.
(E) The resident has a right to have an attorney represent him at the periodic review hearing, but the resident is not entitled to be present at the hearing. The resident may only be present at the hearing upon the issuance of a transport order received by the Department of Mental Health within not less than fifteen days of the hearing date. The Department of Mental Health-designated qualified evaluator will only be required to be present at the hearing if subpoenaed by the resident's attorney or the Attorney General in accordance with the South Carolina Rules of Civil Procedure. The Department of Mental Health must accept service of subpoenas for the appearance of the Department of Mental Health-designated qualified evaluator at the periodic review hearing.
(F) If the court determines that probable cause exists to believe that the resident's mental abnormality or personality disorder has so changed that the resident is safe to be at large and, if released, is not likely to commit acts of sexual violence, the court must schedule a trial on the issue. At the trial, the resident is entitled to the benefit of all constitutional protections that were afforded the resident at the initial commitment proceeding. The Attorney General must notify the victim of all proceedings. The Attorney General must represent the State and has the right to have the resident evaluated by a qualified evaluator chosen by the State. The trial must be before a jury if requested in writing by either the resident, the Attorney General, or the solicitor. If no request is made, the trial must be before a judge in the county where the offense was committed. The resident also has the right to have a qualified evaluator evaluate the resident on the resident's behalf, and the court must appoint a qualified evaluator if the resident is indigent and requests the appointment. The burden of proof at the trial is upon the State to prove beyond a reasonable doubt that the resident's mental abnormality or personality disorder remains such that the resident is not safe to be at large and, if released, is likely to engage in acts of sexual violence.
HISTORY: 1998 Act No. 321, Section 1; 2004 Act No. 176, Section 1, eff February 18, 2004; 2023 Act No. 19 (S.146), Section 8, eff May 16, 2023.
Effect of Amendment
2023 Act No. 19, Section 8, rewrote the section.