Fitness to Stand Trial

2025-2026 Bill 4642: Fitness to Stand Trial - South Carolina Legislature Online

South Carolina General Assembly
126th Session, 2025-2026
Download
This Bill
in Microsoft Word Format
Indicates Matter Stricken
Indicates New Matter
H. 4642
STATUS INFORMATION
General Bill
Sponsors: Reps. Pope, Wooten, Gilliam and C. Mitchell
Document Path: LC-0328VR26.docx
Introduced in the House on January 13, 2026
Currently residing in the House Committee on
Judiciary
Summary: Fitness to Stand Trial
HISTORY OF LEGISLATIVE ACTIONS

Date

Body

Action Description with journal page number

12/16/2025

House

Prefiled

12/16/2025

House

Referred to Committee on
Judiciary

1/13/2026

House

Introduced and read first time (
House Journal-page 44
)

1/13/2026

House

Referred to Committee on
Judiciary
(
House Journal-page 44
)

View the latest
legislative information
at the website
VERSIONS OF THIS BILL
12/17/2025

A bill

TO AMEND THE SOUTH
CAROLINA CODE OF LAWS BY ADDING SECTION
44-23-470
SO AS TO CREATE ADDITIONAL
JUDICIAL PROCEDURES FOR CERTAIN DEFENDANTS WHOSE FITNESS TO STAND TRIAL IS IN
ISSUE; AND BY AMENDING SECTION
44-23-430
, RELATING TO FITNESS TO STAND TRIAL
HEARINGS, SO AS TO MAKE CONFORMING CHANGES.

B
e it enacted by the
General Assembly of the State of South Carolina:

S
ECTION 1.
A
rticle 5, Chapter 23, Title 44 of the S.C. Code is
amended by adding:

S
ection
44-23-470
.
(
A) Upon a finding that
a defendant who is charged with an offense under Section
16-1-60
is incompetent
to stand trial pursuant to Section
44-23-430
(A)(2) or (3), on the motion of the
solicitor or on its own motion, the court may retain jurisdiction over the
defendant, if at a hearing held within thirty days of the motion, the court
finds by clear and convincing evidence that:

(
1)
the defendant is:

(
a)
a person with a mental illness, as the term is defined in Section
44-23-10
,
subject to court order under Section
44-17-580
(A);

(
b)
a person with an intellectual disability or a person with a related disability,
as those terms are defined in Section
44-20-30
, subject to court order under
Section
44-20-450
; or

(
c)
a person with a neurocognitive disorder as defined in the most current
publication of the American Psychiatric Association entitled "The Diagnostic
and Statistical Manual of Mental Disorders" found to be in need of placement in
a facility or service program of the Department of Behavioral Health and
Developmental Disabilities;

(
2)
the defendant committed an offense listed in Section
16-1-60
; and

(
3)
the acts constituting the offense or offenses charged and any history of the
defendant indicate a likelihood of serious harm to himself or others.

(
B)
(
1) In making a determination under
subsection (A) as to whether to retain jurisdiction over the defendant, the
court:

(
a)
shall appoint counsel to represent the defendant if counsel has not been
retained;

(
b)
may admit hearsay or affidavit evidence on secondary matters such as testimony
to establish the chain of custody of physical evidence, laboratory reports,
authentication of transcripts taken by official reporters, court and business
records, and public documents;

(
c)
shall consider all relevant evidence including, but not limited to, any
relevant psychiatric, psychological, or medical testimony or reports, the acts
constituting the offense or offenses charged, and any history of the defendant
that is relevant to the defendant's ability to conform to the law; and

(
d)
may appoint one or more examiners with licensure appropriate for the
defendant's condition to examine the defendant and report to the court their
findings as to the defendant's condition and need for treatment.

(
2)
(
a) Any examination of the defendant's
condition undertaken pursuant to item (1)(d) must be made at a suitable place
not likely to have a harmful effect upon the defendant's health.

(
b)
On a report of a designated examiner of refusal to submit to examination, the
court shall order the defendant to submit to examination. If the defendant
refuses to obey the court's order the court may require a state or local law
enforcement officer to take the defendant into custody for a period not
exceeding twenty-four hours during which time the defendant must be examined by
the designated examiner. The defendant's attorney must be notified before the
defendant is taken into custody.

(
c)
An adequate record of the examination must be made and offered to the
defendant's counsel. The defendant and the solicitor must be given the
opportunity to request an additional examination by an independent designated
examiner. After receiving the reports of the designated examiners, the court
may appoint additional examiners as it deems necessary.

(
C)
If the court conducts a hearing pursuant to subsection (A) and if the court
does not make the relevant findings by clear and convincing evidence, the court
shall issue an order declining to retain jurisdiction over the defendant. If
the court declines jurisdiction based on the provisions of subsection (A)(2) or
(3), the solicitor responsible for the criminal prosecution of the defendant
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, of entry of the court's order declining
jurisdiction.

(
D)
(
1)
(
a) If the court conducts a hearing pursuant
to subsection (A) and retains jurisdiction, the court shall commit the
defendant, if determined to be a person with a mental illness, to a state hospital
under the jurisdiction of the Office of Mental Health for a period not to
exceed one hundred twenty days. During that time, an examination must be made
of the defendant to determine the need for hospitalization of the defendant
pursuant to the standards in Section
44-17-580
.

(
b)
A report of the findings of the examination undertaken pursuant to subitem (a) must
be made to the chief administrative judge of the circuit in which the hearing
was held, the solicitor, the defendant, and the defendant's attorney.

(
c)
Within fifteen days after receipt of this report by the court, the chief
administrative judge of the circuit in which the hearing was held must hold a
hearing to decide whether the defendant should be hospitalized pursuant to the
standards of Section
44-17-580
. If the chief administrative judge finds the
defendant not to be in need of hospitalization, the judge may order the
defendant released upon such terms and conditions, if any, as the judge
considers appropriate for the safety of the community and the well-being of the
defendant. If the chief administrative judge finds the defendant is in need of
hospitalization, the judge must order the defendant committed to a state
hospital under the jurisdiction of the Office of Mental Health.

(
d)
If officials of a state hospital under the jurisdiction of the Office of Mental
Health later determine that a defendant committed for services is no longer in
need of hospitalization, the officials must notify the chief administrative
judge, the solicitor, the defendant, and the defendant's attorney. Within
twenty-one days after the receipt of this notice, the chief administrative
judge, upon notice to all parties, must hold a hearing to determine whether the
defendant is in need of continued hospitalization pursuant to the standards of
Section
44-17-580
. If the finding of the court is that the defendant is in need
of continued hospitalization, the court must order his continued confinement.
If the court's finding is that the defendant is not in need of continued
hospitalization, it may order the defendant released upon such terms and
conditions, if any, as the chief administrative judge considers appropriate for
the safety of the community and the well-being of the defendant.

(
e)
In determining the necessity and terms of the defendant's release, the court
shall consider the extent to which the defendant is a danger to himself and to
others, the need for security, and the type of crime involved and shall order
the least restrictive alternative that is consistent with public safety and the
welfare of the defendant. In weighing these factors, the court shall give
preference to protecting public safety.

(
f)
Any terms and conditions imposed by the chief administrative judge must be
therapeutic in nature, not punitive. Therapeutic terms must include, but not be
limited to, requirements that the defendant must:

(
i)
continue taking medication for an indefinite time and verify in writing the use
of medication;

(
ii) receive periodic examinations
and reviews by psychiatric personnel; and

(
iii) report periodically to the
probation office for an evaluation of the defendant's reaction to his
environment and the defendant's general welfare.

(
2)
(
a) If the court conducts a hearing pursuant
to subsection (A) and retains jurisdiction, the court shall commit the
defendant, if determined to be a person with an intellectual disability,
related disability, or neurocognitive disorder, to a facility or service
program operated by the Department of Behavioral Health and Developmental
Disabilities, or another facility, as appropriate.

(
b)
In determining the place of commitment, the court shall consider the extent to which
the defendant is a danger to himself and to others, the need for security, and
the type of crime involved and shall order the least restrictive alternative
that is consistent with public safety and the welfare of the defendant. In
weighing these factors, the court shall give preference to protecting public
safety.

(
c)
If the Department of Behavioral Health and Developmental Disabilities
determines that a defendant admitted for services is no longer in need of
placement in a facility or in need of services, the officials must notify the
chief administrative judge, the solicitor, the defendant, and the defendant's
attorney. Within twenty-one days after receipt of this notice, the chief
administrative judge, upon notice to all parties, must hold a hearing to
determine whether the defendant is in need of continued placement or treatment.
If the finding of the court is that the defendant is no longer in need of the
services of the department, the court shall discharge the defendant.

(
E)
Regardless of the court's determination pursuant to subsection (A), proceedings
under this section are not a bar to further criminal proceedings based on the
same conduct.

(
F)
The chief administrative judge of the circuit in which the hearing was held
pursuant to subsection (A) has jurisdiction at all times over the defendant for
the purposes of this section. Court administration shall administratively close
all pending warrants for a defendant under the jurisdiction of the circuit
court under this section and the charges shall be held in abeyance during the
pendency of proceedings under this section.

(
G)
For any defendant committed pursuant to this section, the treating
professionals at the institution, facility, or program providing for the
defendant's care shall make a report at least once annually to the chief
administrative judge of the circuit in which jurisdiction was retained
addressing the defendant's condition and continued need for treatment or
supervision to protect the safety of the community or the well-being of the
defendant.

(
H)
The solicitor, the defendant, the defendant's counsel, or the defendant's legal
guardian may petition for reexamination of the defendant's fitness to stand
trial pursuant to Section
44-23-450
.

(
I)
In no case shall the retention of jurisdiction pursuant to this section exceed
the maximum sentence for the crime which the defendant was found to have
committed pursuant to subsection (A)(2), though additional commitment
proceedings may be held pursuant to Sections
44-17-510
through
44-17-610
or
Section
44-20-450
after the court's jurisdiction under this section concludes.

S
ECTION 2.
S
ection
44-23-430
(A)(2) and (3) of the S.C. Code is
amended to read:

(
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
,
or Section
44-23-470
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
, or Section
44-23-470
within fourteen days, excluding
Saturdays, Sundays, and holidays.

S
ECTION 3. This act takes effect upon approval
by the Governor.

----XX----

This web page was last updated on January 13, 2026 at 2:43 PM