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South Carolina Court Administration

South Carolina Court Administration
South Carolina Supreme Court
Columbia, South Carolina

ROSALYN W. FRIERSON
DIRECTOR

1015 SUMTER STREET, SUITE 200
COLUMBIA, SOUTH CAROLINA  29201
TELEPHONE:  (803) 734-1800
FAX:  (803) 734-1355
E-MAIL:  rfrierson@sccourts.org

MEMORANDUM

TO: County Treasurers
FROM:  Robert L. McCurdy, Staff Attorney
RE: Statutory provisions for the distribution of revenue generated by the circuit courts, family courts, magistrates courts and municipal courts; fees and related charges of the registers of deeds
DATE:  June 14, 2005

This past legislative term legislation was passed that will impact the collection, distribution and reporting of court generated revenues. The following is a brief explanation of the new provisions. Please note that numbers 1 through 10 below are temporary provisos from the 2005 - 2006 General Appropriations Act that were repeated verbatim as they appeared in the 2004 - 2005 General Appropriations Act and require no change in the previous procedure for collection and distribution the court generated revenue

1. Effective July 1, 2005, Section 35.11 of the Temporary Provisions of the 2005 - 2006 General Appropriations Act requires that any person who is convicted of, pleads guilty or nolo contendere to, or forfeits bond for an offense tried in general sessions, magistrate's, or municipal court pay an assessment equal to 107.5% of the fine imposed. A similar provision was contained in last year's Temporary Provisos.  The fee was previously 100%, which can be found in Sections 14-1-206, 207, and 208. However, the Temporary Provisions suspend all inconsistent laws for the fiscal year 2005- 2006. The increase in assessment requires that the percentage splits of these fees be amended. Therefore, the assessment in general sessions will be distributed 64.65% state/35.35% county. The assessment in magistrate's and municipal court will be split 88.84% state/11.16% county.

2. Effective July 1, 2005, Section 35.10 of the Temporary Provisions of the 2005 - 2006 General Appropriations Act raises the application fee for public defender services to $40.00. Similarly to number one above, the previous fee of $25.00 can be found in ยง 17-3-30 (B), but is suspended as inconsistent law for the fiscal year 2005 - 2006.

3. Effective July 1, 2005, Section 35.12 of the Temporary Provisions of the 2005 - 2006 General Appropriations Act provides procedures for the collection, distribution, and reporting of the $40.00 Public Defender Application Fee.  The Section requires that any individual asking for a court appointed attorney, or the parents or legal guardian of any juvenile brought before the court, file application for a public defender, and such representation creates a claim against the assets and estate of the person who is provided counsel, or the parents or legal guardians of a juvenile provided counsel.  Finally, this Section provides that any unpaid representation fees may be reduced to judgment against those individuals, parents, or legal guardians.

4. Effective July 1, 2005, Section 35.13 of the Temporary Provisions of the 2005 - 2006 General Appropriations Act requires that every person placed on probation on or after July 1, 2005, who is represented by a public defender or appointed counsel, shall be assessed a fee of $500.00.  These funds shall be collected by the clerk on a monthly basis and forwarded to the Office of Indigent Defense to be divided between the Conflict Fund and the Defense of Indigents/Per Capita Fund.  Provided, however, in those counties which contract with appointed counsel other than the public defender, one half of the fee collected may be remitted by the clerk to the county which contracts for payment of the services. 

5. Effective July 1, 2005, Section 33.7 of the Temporary Provisions of the 2005 - 2006 General Appropriations Act requires that, in addition to all other assessments and surcharges, during fiscal year 2005 - 2006, a $100.00 surcharge is levied on all fines, forfeitures, escheatments, or other monetary penalties imposed in the general sessions court or magistrates or municipal court for misdemeanor or felony drug offenses.  All revenues collected pursuant to this Section must be forwarded to the State Treasurer, who shall transmit these funds to the Prosecution Coordination Commission for drug treatment court.  No portion of the surcharge may be waived, reduced, or suspended.  This Section also authorizes the State Treasurer and State Auditor to audit local jurisdictions to ensure that revenues are being handled properly. 

6. Effective July 1, 2005, Section 73.3 of the Temporary Provisions of the 2005 - 2006 General Appropriations Act requires that, in addition to all other assessments and surcharges, during fiscal year 2005 - 2006, a $25.00 surcharge is levied on all fines, forfeitures, escheatments, or other monetary penalties imposed in the general sessions court or in magistrates or municipal court for misdemeanor traffic offenses or for non-traffic violations.  No portion of the surcharge may be waived, reduced, or suspended.  These revenues shall be transmitted to the State Treasurer who shall distribute the money to numerous law enforcement agencies as prescribed by the Section.  This Section also authorizes the State Treasurer and State Auditor to audit local jurisdictions to ensure that revenues are being handled properly. 

7. Effective July 1, 2005, Section 32.5 of the Temporary Provisions of the 2005 - 2006 General Appropriations Act provides that the State of South Carolina, or a person or entity acting on behalf of the State of South Carolina, is not required to pay civil filing fees in proceedings brought under Chapter 48 of Title 44, the Sexually Violent Predator Act. 

8. Effective July 1, 2005, Section 73.13 of the Temporary Provisions of the 2005 - 2006 General Appropriation Act requires that the filing fee in Family and Circuit Court be increased by $50.00.  This increase is in addition to the $100.00 fee required by Section 8-21-310 (11)(a).  Therefore, the total filing fee in those courts for fiscal year 2005 - 2006 is $150.00.  This increase also applies to filing and enrolling foreign judgments in Family and Circuit Court.  The increased $50.00 fee must be separately transmitted to the State Treasurer. 

9. Effective July 1, 2005, Section 72.100 of the Temporary Provisions of the 2005 - 2006 General Appropriations Act requires that a $25.00 assessment be imposed on all summons and complaints and interpleader actions filed in magistrate court, and a $10.00 assessment be imposed on all other civil filings in magistrate court, except no filing fee, nor an additional assessment, is required on restraining orders.  The additional $25.00 and $10.00 assessment must be forwarded to the State Treasurer for dispersal. 

10.  Effective July 1, 2005, Section 72.92 of the Temporary Provisions of the 2005-2006 General Appropriations Act authorizes the State Auditor to investigate the collection and distribution of court generated revenue at any level of court.  The text of proviso 72.92 is provided below in its entirety as information.  However, the proviso is not discussed in the attached memorandum.   

72.92.      (GP: Assessment Audit)  (1)  The State Auditor shall periodically examine the books, accounts, receipts, disbursements, vouchers, and any records deemed necessary of the county treasurers, municipal treasurers, county clerks of court, magistrates, and municipal courts to report whether the assessments, surcharges, fees, fines, forfeitures, escheatments, or other monetary penalties imposed or mandated, or both, by law in family court, circuit court, magistrates court, and municipal court are properly collected and remitted to the State.  In addition, the purpose of these audits is to determine if the proper amount of funds have been reported, retained, and allocated for victim services in accordance with state law.  These audits must be performed in accordance with standard auditing practices to include the right to respond to findings before the publishing of the audit report.  The State Auditor is directed to submit a copy of the completed audit report to the Chairmen of the House Ways & Means Committee, Senate Finance Committee, House Judiciary Committee, Senate Judiciary Committee, and the Governor.  If the State Auditor finds that any authority has over remitted the state's portion of the funds collected by the authority or over reported or over retained crime victim funds, the State Auditor shall notify the State Treasurer to make the appropriate adjustment to the authority.  If the State Auditor finds that any authority has under remitted, incorrectly reported, incorrectly retained, or incorrectly allocated the state or victim services portion of the funds collected by the authority, the State Auditor shall determine where the error was made.  If the error is determined to have been made by the county or municipal treasurer's office, the State Auditor shall notify the State Office of Victim Assistance for the crime victim portion and the chief administrator of the county or municipality of the findings and, if full payment has not been made by the county or municipality within ninety days of the audit notification, the State Treasurer is directed to adjust the authority's aid to subdivisions funding in an amount equal to the amount determined by the State Auditor to be the state's portion; or equal to the amount incorrectly reported, retained, or allocated pursuant to Sections 14-1-206(B)(D), 14-1-207(B)(D), 14-1-208(B)(D), and 14-1-211(B) of the 1976 Code.

If an error is determined to have been made at the magistrate, municipal, family, or circuit courts, the State Auditor shall notify the responsible office, their supervising authority, and the chief justice of the State.  If full payment has not been made by the court within ninety days of the audit notification, the chief magistrate or municipal court or clerk of court shall remit an amount equal to the amount determined by the State Auditor to be the state's portion or the crime victim fund portion within ninety days of the audit notification.            

(2)      The State Auditor is further authorized to conduct these examinations and the local authority is required to participate in and cooperate fully with the examination.  The State Auditor is authorized to subcontract with independent auditors on audits required in subsection (1).  The State Auditor is encouraged to create an audit team to perform these audits.  The State Treasurer is authorized to transfer the first $10,900 received from the General Sessions Court pursuant to Section 14-1-206, the first $136,600 received from the Magistrates Court pursuant to Section 14-1-207, and the first $102,500 received from the Municipal Court pursuant to Section 14-1-208 for a total of $250,000 dollars to the State Auditor's Office to fund these audits as required in subsection (1).  Notwithstanding another provision of law, a state agency or local governmental entity receiving assessments, surcharges, fees, fines, forfeitures, escheatments, or other monetary penalties imposed or mandated, or both, by law in family court, circuit court, magistrates court and municipal court is authorized to use any of their funds to assist the State Auditor's Office in funding these audits.

(3)      Each municipality shall submit a copy of its annual audit report as provided in Section 5-7-240 of the 1976 Code without charge to both the State Treasurer's Office and the State Auditor's Office within thirty days of such report being made public.  If a municipality fails to provide the copy of the annual audit within the above prescribed time period the State Treasurer's Office is authorized to withhold the municipality's aid to subdivision until the annual audit report is properly filed.

(4)      The State Treasurer's Office and South Carolina Court Administration shall make available annually training on the collection and distribution of assessments, surcharges, fees, fines, forfeitures, escheatments, or other monetary penalties imposed or mandated, or both, by law in family court, circuit court, magistrates court and municipal court for the counties, municipalities, and court employees.

(5)      The State Treasurer is authorized to transfer $2,000 received from the General Sessions Court pursuant to Section 14-1-206, $5,000 received from Magistrates Court pursuant to Section 14-1-207, and $3,000 received from Municipal Court pursuant to Section 14-1-208 for a total of $10,000 to fund annual training on the collection and distribution of assessments, surcharges, fees, fines, forfeitures, escheatments, or other monetary penalties imposed or mandated, or both, by law in family court, circuit court, magistrates court, and municipal court for the counties, municipalities, and court employees.  The State Treasurer's Office and South Carolina Court Administration shall be responsible for the annual training prescribed by this section.

11. Effective December 9, 2005, R 159, S 1 (Act # not yet assigned) amends Code 56-5-6450 relating to child passenger restraint systems so as to require that no assessments or surcharges may be added to the $25 fine for a violation of that offense.  Similarly, Code 56-5-6540 relating to the mandatory use of seat belts requires that no assessments or surcharges be added to the $25 fine for a violation of that offense.

12.  Effective September 8, 2004, Act No. 306 of 2004 amended Section 16-11- 700, so as to require that individuals convicted of littering must be sentenced to a specified number of hours of litter gathering labor as a part of the sentence, which may not be suspended.  The statute provides that the defendant may elect to pay an additional monetary penalty of five dollars per hour instead of the required litter gathering.  That amount must be added to the original fine imposed prior to adding the required assessments and surcharges. 

13.  Effective January 1, 2006, Act No. 106 of 2005 amends Section 16-3-1750 so as to provide that a magistrate shall charge the filing fee to the nonprevailing party in an action for a restraining order against harassment and stalking.  No fee may be charged when the action is initially filed.

__________________________

Copies of any of the legislation referenced above may be obtained by contacting Legislative Information at 1-800-922-1539 or by visiting their website at http://www.scstatehouse.net.

The enclosed memorandum has been updated to reflect these amendments and discusses these changes in more detail. This memorandum supersedes prior memoranda from Court Administration on the collection and distribution of court generated revenue. It attempts to outline and explain the statutory procedures for collecting and distributing revenues in the circuit, family, magistrate, and municipal courts as well as the register of deeds. Examples of several of the distributions covered in the text of the memorandum appear in the attachments.

The actual distribution of revenue generated by the circuit, family, and magistrate courts is handled by the county treasurer in most cases. City treasurers disburse monies generated by the municipal courts. The treasurers are required to remit the funds to the State Treasurer monthly on such forms and in such manner as is required by him. The county treasurer can determine which funds should be transmitted to the State Treasurer by referring to the clerks' remittance form which is included as "Attachment D", the magistrates' remittance form which is included as "Attachment E", or the magistrates' docket sheets. The city treasurer can determine which funds should be transmitted to the State Treasurer by referring to the municipal courts' remittance form which is included as "Attachment F". Additional information on how to specifically distribute funds is provided in the clerk's and magistrate's monthly report to the auditor and/or treasurer.

In this discussion of the distribution of funds, the general rule for each court is stated and followed by an explanation of the statutory exceptions for distribution. The outline which precedes the memorandum summarizes its contents. Please note in the memorandum specific time guidelines pertaining to the transmittal of these revenues. Strict, prompt adherence to the guidelines is required.

Please provide copies of this memorandum to all members of your staff whose duties relate to the collection or distribution of court revenues. If you or your staff have any questions concerning the collection or distribution of revenue, do not hesitate to contact this office.

THE COMPLETE MEMORANDUM IS POSTED UNDER THE WHAT'S NEW SECTION AT WWW.SCCOURTS.ORG.