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SB17 SUB1 Senate Bill 17 History

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Key: Green = existing Code. Red = new code to be enacted

WEST virginia legislature

2019 regular session

Committee Substitute

for

Senate Bill 17

Senators Trump and Boso, original sponsors

[Originating in the Committee on the Judiciary; reported on January 16, 2019]

 

 

A BILL to amend and reenact §62-12-2 of the Code of West Virginia, 1931, as amended, relating to eligibility for probation generally; adding the option of a psychological study and diagnosis to the studies and treatment required for a person to be eligible for probation upon conviction of certain sexually related offenses; and adding offenses involving preparation, distribution, or exhibition of obscene matter to minors to the list of offenses for which such examinations are required for probation eligibility.

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 is 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:

(A) Found by the court upon a plea of guilty or nolo contendere; or

(B) 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

(C) 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 §61-8A-1 et seq. of this code, the provisions of §61-8B-1 et seq. or §61-8C-1 et seq. of this code, or under the provisions of §61-8D-5 of this 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 ongoing 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 §15-12-2a 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.


 

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