Key Information

Relevant Statutes and Rules

S.C. Code Ann. § 44-23-410 through 44-23-460

What proceedings can occur while the defendant is incompetent

"A finding of unfitness to stand trial under Section 44-23-430 does not preclude any legal objection to the prosecution of the individual which is susceptible of fair determination prior to trial and without the personal participation of the defendant.

If either the person found unfit to stand trial or his counsel believes he can establish a defense of not guilty to the charges other than the defense of insanity, he may request an opportunity to offer a defense on the merits to the court. The court may require affidavits and evidence in support of such request. If the court grants such request, the evidence of the State and the defendant shall be heard before the court sitting without a jury. If after hearing such petition the court finds the evidence is such as would entitle the defendant to a directed verdict of acquittal, it shall dismiss the indictment or other charges."

S.C. Code Ann. § 44-23-440

Number of examiners required

2

S.C. Code Ann. § 44-23-410(A)(1)

Qualifications of examiners

"examiners designated by the Department of Mental Health if the person is suspected of having a mental illness or designated by the Department of Disabilities and Special Needs if the person is suspected of having intellectual disability or having a related disability or by both sets of examiners if the person is suspected of having both mental illness and intellectual disability or a related disability"

S.C. Code Ann. § 44-23-410(A)(1)

What must the evaluation report contain

Report shall include

"(1) a diagnosis of the person's mental condition; and
(2) clinical findings bearing on the issues of whether or not the person is capable of understanding the proceedings against him and assisting in his own defense, and if there is a substantial probability that he will attain that capacity in the foreseeable future."

S.C. Code Ann. § 44-23-420(A)

Are low-level offenses excluded from restoration

None stated.

Is there a pathway for diversion following a finding of incompetence to stand trial

None stated.

What are the locations for restoration services

If in detention, in a hospital or a detention facility.

If on bond, in a hospital or on an outpatient basis.

S.C. Code Ann. § 44-23-430(A)(3)

What is the test for restorability

"unlikely to become fit to stand trial in the foreseeable future"

S.C. Code Ann. § 44-23-430(A)(2)

What is the procedure after restoration

"A finding of unfitness to stand trial under Section 44-23-430 may be reexamined by the court upon its own motion, or that of the prosecuting attorney, the person found unfit to stand trial, his legal guardian, or his counsel. Upon receipt of the petition, the court shall order an examination by two designated examiners whose report shall be submitted to the court and shall include underlying facts and conclusions. The court shall notify the individual, his legal guardian, and his counsel of a hearing at least ten days prior to such hearing. The court shall conduct the proceedings in accordance with Section 44-23-430, except that any petition that is filed within six months after the initial finding of unfitness or within six months after the filing of a previous petition under this section shall be dismissed by the court without a hearing."

S.C. Code Ann. § 44-23-450

If defendant is found competent, "the court may order that criminal proceedings against a person who has been found fit to stand trial be resumed, or the court may dismiss criminal charges and order the person released if so much time has elapsed that prosecution would not be in the interest of justice."

S.C. Code Ann. § 44-23-460

What is the procedure if there is a finding of unrestorability

"the solicitor responsible for the criminal prosecution shall initiate [involuntary hospitalization proceedings] 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"

S.C. Code Ann. § 44-23-430(A)

What are the time limits on initial transfer to restoration services

None stated.

What are the time limits for treatment

N/A

What is the process if time limit is reached without restoration

"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 [involuntary hospitalization proceedings] within fourteen days, excluding Saturdays, Sundays, and holidays."

S.C. Code Ann. § 44-23-430(A)(3)

If defendant is not involuntarily hospitalized, he 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." In either case, the court will hold a hearing to determine terms and conditions of bond,  which must include conditions that are "therapeutic in nature."

S.C. Code Ann. § 44-23-430(C)

Are there prohibitions on revoking pretrial release or competency as a pre-trial release factor

None stated.

Time limits on treatment

180 days.

S.C. Code Ann. § 44-23-430(A)(3)