ROSALYN W. FRIERSON
1015 SUMTER STREET, SUITE 200
|TO:||Magistrates and Municipal Judges
|FROM:||Robert L McCurdy, Assistant Director
Conversion of Criminal Fines and Restitution to Civil Judgment
|DATE:||November 18, 2013
Effective June 13, 2013, Act No. 82 of 2013 amended SC Code §17-25-323, so as to add subsection (C) to provide for conversion of unpaid criminal fines and restitution to civil judgment in magistrate and municipal court. The amended subsection provides that when a defendant is in default in the payment of restitution or of any installment of any criminal fines, surcharges, assessments, costs and fees ordered as a result of a criminal conviction, a magistrate or municipal judge, within one year of the imposition of the sentence, on motion of the victim or the victim's legal representative, the Attorney General, the solicitor, or the prosecuting law enforcement agency, or upon the court's own motion, must hold a hearing to require the defendant to show cause why his default should not be treated as a civil judgment and a judgment lien attach.
Provided below is a recommended procedure to be used to effectuate this legislative change. Also attached are five recommended forms to be used in this procedure. Act No. 82 may be accessed in its entirety at the following link: http://www.scstatehouse.gov/sess120_2013-2014/bills/3602.htm. Please refer to Sections 4, 5 and 6 of the Act. Finally, the online Bench Book for Magistrates and Municipal Judges will be amended to include this information. Should you have questions concerning this matter, please do not hesitate to contact this Office.
1. The motion must be made within one year of imposition of sentence or order of restitution.
2. Defendant must be in default in payment of restitution or of any installment of any criminal fines, surcharges, assessments, costs and fees ordered by the magistrate or municipal court.
3. Motion may be made by the victim or the victim's legal representative, the Attorney General, the solicitor, the prosecuting law enforcement agency, or upon the court's own motion.
4. Upon receipt of motion or upon the court's own motion, defendant shall be served with a rule to show cause why the criminal fine, assessments and surcharges, or restitution should not be converted to a civil judgment and a judgment lien attached. (See attached Form SCCA 516 (A)).
5. All necessary parties should be summoned to the show cause hearing.
6. If the court determines that the fine or restitution should be converted, the judge should:
a) In the case of a fine, including assessments and surcharges, enter judgment in favor of the State for the unpaid balance, using civil judgment form SCCA 516 (B). While the judgment is in favor of the State as required by the legislation, the magistrate or municipal court should be named as the Payee on the order. Any funds resulting from the collection of a judgment for unpaid fines, assessments and surcharges must be distributed in the same manner and proportion as fines, assessments and surcharges are otherwise distributed as prescribed by statute, with the appropriate amount retained by the local entity, and the appropriate amount forwarded to the State Treasurer for distribution to the various governmental recipients.
b) In the case of restitution, enter judgment in favor of each person entitled to restitution, plus reasonable attorney's fees and costs, if applicable. Civil judgment form SCCA 516 (C) has been developed for restitution judgments. While the victim is the judgment creditor as required by the legislation, the form judgment has been designed to name the trial court as the recipient of the funds, which should then reimburse the victim when payment is received. This accomplishes two things, (1) the victim's address is not given to the defendant, and (2) the court is able to verify payments made and identify when the total amount has been satisfied.
7. The magistrate or municipal court, upon conversion, must transmit the judgment to the clerk of the circuit court for entry in the civil judgment records of that court. The judgment is not effective until such filing with the clerk. A filing fee or other fee may not be required for the filing of the civil judgment.
8. If the defendant has been making regular payments on such a judgment, and fails to do so for three consecutive months, or if a payment is received pursuant to the Setoff Debt Collection Act1, in the case of a judgment for restitution, the magistrate or municipal court must file a partial satisfaction of judgment with the clerk of the circuit court, who will mark the actual judgment partially satisfied in the amount of funds received. In the case of a partial satisfaction of a fine, the magistrate or municipal court must file the partial satisfaction of judgment with the clerk. SCCA 516 (D) has been developed for this purpose.
9. Upon full satisfaction of a judgment entered pursuant to a judgment for restitution or for fine, assessments and surcharges, the judgment creditor must file a satisfaction of judgment with the circuit clerk of court, who will mark the actual judgment satisfied in the margin of such judgment. In the case of a satisfaction of a fine, the magistrate or municipal court should file the actual satisfaction of judgment. In the case of a satisfaction for restitution, the victim or the court may file the satisfaction with the circuit clerk of court. SCCA 516 (E) has been developed for this purpose.
1 Conversion of fines or restitution to judgment does not preclude utilization of collection pursuant to the Setoff Debt Collection Act, SC Code §12-56-10 et seq. These cases should remain open in your records after conversion to judgment. However, each court shall be required to conduct regular case maintenance to ensure proper balances reflect funds received. If and when fine or restitution judgments are paid in full, the court must ensure that the setoff debt collection procedure is ceased.
Cc: Clerks of Court