WEST virginia legislature
2019 regular session
Introduced
Senate Bill 17
By Senators Trump and Boso
[Introduced
January 9, 2019; Referred
to the Committee on the Judiciary]
A BILL to amend and reenact §62-12-2 of the Code of West Virginia, 1931, as amended, relating to eligibility for probation; and adding the option of a psychological study and diagnosis to the studies and treatment required for a person to be eligible for probation.
Be it enacted by the Legislature of West Virginia:
ARTICLE 12. PROBATION AND PAROLE.
§62-12-2. Eligibility for probation.
(a) All persons
who are found guilty of or plead guilty to any felony, the maximum penalty for
which is less than life imprisonment, and all persons who are found guilty of
or plead guilty to any misdemeanor, shall be are eligible for
probation, notwithstanding the provisions of §61-11-18 and §61-11-19 of this
code.
(b) The
provisions of subsection (a) of this section to the contrary notwithstanding,
any person who commits or attempts to commit a felony with the use, presentment
or brandishing of a firearm shall be ineligible are not eligible for
probation. Nothing in this section shall may apply to an
accessory before the fact or a principal in the second degree who has been
convicted as if he or she were a principal in the first degree if, in the commission
of or in the attempted commission of the felony, only the principal in the
first degree used, presented or brandished a firearm.
(c)(1) The
existence of any fact which would make any person ineligible for probation
under subsection (b) of this section because of the commission or attempted
commission of a felony with the use, presentment or brandishing of a firearm shall
may not be applicable unless such the fact is clearly
stated and included in the indictment or presentment by which such that
person is charged and is either: (i) Found by the court upon a plea of guilty
or nolo contendere; or (ii) found by the jury, if the matter be tried before a
jury, upon submitting to such the jury a special interrogatory
for such purpose; or (iii) found by the court, if the matter be tried by the
court, without a jury.
(2) The amendments to this subsection adopted in the year 1981:
(A) Shall
Apply to all applicable offenses occurring on or after August 1, of that year;
(B) Shall
Apply with respect to the contents of any indictment or presentment returned on
or after August 1, of that year irrespective of when the offense occurred;
(C) Shall
Apply with respect to the submission of a special interrogatory to the jury and
the finding to be made thereon in any case submitted to such the jury
on or after August 1, of that year or to the requisite findings of the court
upon a plea of guilty or in any case tried without a jury: Provided,
That the state shall give notice in writing of its intent to seek such finding
by the jury or court, as the case may be, which notice shall state with
particularity the grounds upon which such the finding shall be
is sought as fully as such grounds are otherwise required to be stated
in an indictment, unless the grounds therefor are alleged in the indictment or
presentment upon which the matter is being tried;
(D) Shall
May not apply with respect to cases not affected by such the
amendment and in such cases the prior provisions of this section shall apply
and be construed without reference to such the amendment; and
Insofar as such amendments relate to mandatory sentences without probation, all such matters requiring such sentence shall be proved beyond a reasonable doubt in all cases tried by the jury or the court.
(d) For the
purpose of this section, the term "firearm" shall means any
instrument which will, or is designed to, or may readily be converted to, expel
a projectile by the action of an explosive, gunpowder, or any other similar
means.
(e) In the
case of Any person who has been found guilty of, or pleaded guilty to, a
violation of the provisions of §61-8-12 of this code, the provisions of §61-8B-1
et seq. or §61-8C-1 et seq of said code, or under the provisions of §61-8D-5 of
said code, such person shall may only be eligible for probation
after undergoing a physical, mental and psychiatric or psychological study
and diagnosis which shall include an on-going treatment plan requiring active
participation in sexual abuse counseling at a mental health facility or through
some other approved program: Provided, That nothing disclosed by the
person during such study or diagnosis shall may be made available
to any law-enforcement agency, or other party without that person's consent, or
admissible in any court of this state, unless such the information
disclosed shall indicates the intention or plans of the probationer to
do harm to any person, animal, institution or property, in which case such
the information may be released only to such persons as might be
necessary for protection of the said person, animal, institution or property.
Within 90 days of the effective date of this section as amended and reenacted during the first extraordinary session of the Legislature, 2006, the Secretary of the Department of Health and Human Resources shall propose rules and emergency rules for legislative approval in accordance with the provisions of §29A-3-1 et seq. of this code establishing qualifications for sex offender treatment programs and counselors based on accepted treatment protocols among licensed mental health professionals.
(f) Any person who has been convicted of a violation of the provisions of §61-8B-1 et seq. and §61-8C-1 et seq. or §61-8D-5 and §61-8D-6 of this code, or of §61-2-14, §61-8-12 and §61-8-13 of this code, or of a felony violation involving a minor of §61-8-6 or §61-8-7 of this code, or of a similar provision in another jurisdiction shall be required to be registered upon release on probation. Any person who has been convicted of an attempt to commit any of the offenses set forth in this subsection shall also be registered upon release on probation.
(g) The probation officer shall within three days of release of the offender, send written notice to the State Police of the release of the offender. The notice shall include:
(1) The full name of the person;
(2) The address where the person shall reside;
(3) The person's social security number;
(4) A recent photograph of the person;
(5) A brief description of the crime for which the person was convicted;
(6) Fingerprints; and
(7) For any person determined to be a sexually violent predator as defined in section two-a, article twelve, chapter fifteen of this code, the notice shall also include:
(i) Identifying factors, including physical characteristics;
(ii) History of the offense; and
(iii) Documentation of any treatment received for the mental abnormality or personality disorder.
NOTE: The purpose of this bill is to add the option of a psychological study and diagnosis to the studies and treatment required for a person to be eligible for probation.
Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.