H. B. 2580
(By Delegates Rowe and Trump)
(Introduced February 21, 1995; referred to the
Committee on the Judiciary.)
A BILL to amend chapter fourteen of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, by adding
thereto a new article, designated article two-b, relating to
the distribution of moneys received as a result of the
commission of a crime; and providing treble civil damages for
the violation thereof.
Be it enacted by the Legislature of West Virginia:
That chapter fourteen of the code of West Virginia, one thousand
nine hundred thirty-one, as amended, be amended by adding thereto
a new article, designated article two-b, to read as follows:
ARTICLE 2B. DISTRIBUTION OF MONEYS RECEIVED AS A RESULT OF THE
COMMISSION OF CRIME
§14-2B-1. Short title.
This article shall be known and may be cited as the "West
Virginia Profits from Crime Act."
§14-2B-2. Legislative findings; purpose and intent.
The Legislature finds and declares that it is a violation of
the public policy of this state to permit a person who commits a
crime to thereafter profit from the commission of that crime.
Consequently, the Legislature finds that when a person convicted of
a crime later profits as a result of the commission of that crime,
that such profits should be used to compensate those crime victims
who were damaged as a result of the commission of the crime, as
well as the taxpayers who paid for the prosecution or incarceration
of the defendant, or both.
§14-2B-3. Definitions.
As used in this article, the term:
(a)"Crime" means any offense designated by the provisions of
this code as a felony or misdemeanor.
(b) "Crime profits" means:
(1) any property obtained through or income generated from the
commission of a crime of which the defendant was convicted;
(2) any property obtained by or income generated from the
sale, conversion or exchange of proceeds of a crime, including any
gain realized by such sale, conversion or exchange; or
(3) any property which the defendant obtained or income
generated as a result of having committed the crime, including any
assets obtained through the use of unique knowledge obtained during
the commission of, or in preparation for the commission of, the
crime, as well as any property obtained by or income generated from
the sale, conversion or exchange of such property and any gain
realized by such sale, conversion or exchange.
(c)"Crime victim" means the victim of the offense or the
personal representative of a crime victim.
(d) "Defendant" means a person charged with a crime or
convicted of a crime after trial, by entry of a plea of guilty or
by entry of a plea of nolo contendere in any court in this state.
The term "defendant" shall also include any person found by a court
of record to be not criminally responsible for the commission of a
crime by reason of mental illness, mental retardation or addiction.
(e)"Court" means the circuit court of the county wherein the
defendant is charged with or was prosecuted for the commission of
the crime.
(f) "Personal representative" means an attorney-in-fact or
legal guardian of a living person, or the executor, administrator,
successor personal representative, special administrator, and
persons who perform substantially the same function under the law
governing their status, of the estate of a deceased person.
(g) "Prosecutor" means the prosecuting attorney of the county
in which the defendant is charged with or was prosecuted for the
commission of the crime.
(h) "Contract" means any agreement, whether reduced to
writing or not, in which any person, firm, corporation,
partnership, association or other legal entity contracts for, pays,
or agrees to pay, any crime profits to a defendant or to a
defendant's personal representative.
§14-2B-4. Notice of contract with defendant; payment over of crime
profits to prosecutor; placing of crime profits into escrow account.
(a)Every person, firm, corporation, partnership, association
or other legal entity which knowingly contracts for, pays, or
agrees to pay, any crime profits as defined in section three of
this article, to a defendant shall submit a copy of such contract
to the prosecutor and pay over to the prosecutor any moneys which
would otherwise, by the terms of such contract, be owing to the
defendant. The prosecutor shall deposit such moneys in an interest
bearing escrow account and shall thereafter disburse such moneys
only in accordance with the provisions of this article.
(b)Every defendant who contracts for, receives, or agrees to
receive, any crime profits as defined in section three of this
article, from any person, firm, corporation, partnership,
association or other legal entity, shall submit a copy of such
contract to the prosecutor and pay over to the prosecutor any
moneys which would otherwise, by the terms of such contract, be
owing to the defendant. The prosecutor shall deposit such moneys in
an interest bearing escrow account and shall thereafter disburse
such moneys only in accordance with the provisions of this article.
§14-2B-5. Prosecutor to commence action to distribute profits from
crime; joinder of parties; statute of limitations;
issues to be determined in action.
(a) The prosecutor shall, within six months of the receipt of
any contract or moneys, bring an action in interpleader in
accordance with the west virginia rules of civil procedure for
trial courts of record to determine the distribution of any crime profits which have been received or may be received in the future
by the defendant. The prosecutor shall join the defendant, any
instrumentality of the state or political subdivision thereof which
has expended or likely will expend taxpayer funds as a result of
the commission of the crime, including without limitation, funds to
prosecute or incarcerate the defendant, all known crime victims,
the crime victim's compensation fund and any person, firm,
corporation, partnership, association or other legal entity which
has paid, or agreed to pay, any crime profits to the defendant, as
parties to the action.
(b)Notwithstanding any other provision of this code with
respect to the timely bringing of an action, the prosecutor shall
have the right to bring a civil action authorized by this section
within three years after the prosecutor first receives notice
pursuant to section four of this article. If, but for the
provisions of this section, any party would be barred from bringing
an action due to the expiration of the applicable statute of
limitations, said party may not recover damages against the
defendant in excess of the value of the crime profits allotted to
said party by the court in accordance with the provisions of this
article.
(c) A crime victim, the defendant, or any instrumentality of
the state or political subdivision thereof may bring a writ of
mandamus to compel the prosecutor to bring an interpleader action
authorized by this section. Any applicable statue of limitations
shall be tolled during the pendency of such writ.
(d) Any party to the interpleader action may demand a trial
by jury on the entitlement to and damages arising from any claim of
any instrumentality of the state or political subdivision thereof
or any crime victim, except that such claims that have already been
reduced to judgment by a court of competent jurisdiction shall be
conclusively presumed to have been established: Provided, That no
jury trial shall be permitted on subrogation claims of the crime
victim's compensation fund.
(d) The court may, upon motion of any party or upon its own
motion, consolidate with the interpleader action any other pending
civil actions by crime victims against the defendant when the basis
for such other action is the crime which has or may result in the
generating of crime profits.
§14-2B-6. Prosecutor may make payments from escrow account for the
necessary expenses of production of moneys paid into
the escrow account; payment of moneys to defendant if
charges dismissed prior to filing of interpleader
action.
(a) The prosecutor may in his or her discretion, and without
court approval, make such payments from the escrow account to such
parties as may be necessary to preserve or maintain the moneys paid
into the escrow account, provided the prosecutor finds that such
payments would be in the best interests of the state or of the
victims of the crime and would not be contrary to public policy.
(b) If, at any time prior to the bringing of an interpleader
action as authorized by this article, the charges against the defendant are dismissed, or the defendant is acquitted of such
charges, except a defendant found by a court of record to be not
criminally responsible for the commission of a crime by reason of
mental illness, mental retardation or addiction, the prosecutor
shall immediately pay over to such defendant all moneys, including
accrued interest, in the escrow account established on behalf of
such defendant.
§14-2B-7. Prosecutor to distribute funds as ordered by court;
court to order distribution of funds.
(a) Except as otherwise provided in this article, the
prosecutor shall distribute funds which are or may later be
deposited in the escrow account only in accordance with this
section.
(b) The court or jury before which the interpleader action
authorized by this article is pending shall decide all claims,
except such claims that have already been reduced to judgment by a
court of competent jurisdiction which shall be conclusively
presumed to have been established, to such crime profits as have
already or may later due and owing to the defendant as a result of
the contract, and shall thereafter order the prosecutor to
distribute such moneys as are in the escrow account, or as may be
later paid to the defendant pursuant to the contract, in accordance
with the provisions of this section. If no escrow account has been
established at the time of the court's entry of judgment, the court
shall provide in its final order for the distribution of any future
crime profits, and shall provide that any such funds be paid directly to such persons as the court may direct. If an escrow
account is established the court shall distribute the moneys in the
escrow account and shall provide that any future funds, if any, be
paid directly to such persons as the court may direct. If an
escrow account is established and the court finds that it is likely
that future crime profits will accrue to the defendant, the court
in its discretion may provide for the continuance of the escrow
account and for such further hearings as may be necessary, or may
provide that any future funds be paid directly to such persons as
the court may direct.
(c) Upon dismissal of charges or acquittal of any defendant,
except a defendant found by a court of record to be not criminally
responsible for the commission of a crime by reason of mental
illness, mental retardation or addiction, the court shall order the
prosecutor to immediately pay over to such defendant the moneys,
including accrued interest, in the escrow account established on
behalf of such defendant.
(d)Upon a showing by any defendant that three years have
elapsed since the prosecutor first received notice pursuant to
section four of this article and further that no actions are
pending against such defendant pursuant to this article, the court
shall order the prosecutor to immediately pay over any moneys in
the escrow account to such defendant or his legal representatives.
(e) Upon a showing by the defendant that such moneys shall be
used for the exclusive purpose of retaining legal representation at
any stage of the criminal proceedings against such defendant, including the appeals process, the court shall order the prosecutor
to pay over such moneys as are reasonable and necessary to pay for
such legal representation: Provided, That if the defendant at any
time during such criminal proceedings has been represented by
court-appointed counsel, the court shall first order that public
defender services be reimbursed for any funds expended on the
defendant to provide such defendant with court-appointed counsel.
§14-2B-8. Priorities of claims to moneys in escrow account.
(a) The court, in ordering relief pursuant to this article,
shall distribute the moneys in the escrow account and moneys which
may later be payable under the contract, in the following priority:
(1) payments authorized by the court for the exclusive
purpose of retaining legal representation at any stage of the
criminal proceedings against such defendant;
(2)reasonable attorneys fees and expenses incurred by the
prosecutor in bringing the interpleader action;
(3) civil judgments of the victims of the crime, judgments
awarded to any crime victim pursuant to the interpleader action
authorized by this article, and subrogation claims of the crime
victim's compensation fund;
(4)unpaid criminal fines owed to the state by the defendant
as a result of the defendant's conviction for any crime;
(5) expenses incurred by any other instrumentality of the
state or political subdivision thereof as a result of the
commission of the crime, including, without limitation, any county
or regional jail or penitentiary in which the defendant was incarcerated: Provided, That for the purposes of this subdivision
the term "instrumentality of the state or political subdivision
thereof" shall not include the crime victim's compensation fund;
and
(6) the defendant.
(b)No payment shall be made out of the escrow account where
such payment would be in derogation of claims, either presented or
pending, entitled to a higher priority under this subdivision. If
insufficient moneys exist to pay all claims entitled to equal
priority, the court shall equitably allot such moneys as are
available among the several claimants. Notwithstanding any
provision in this article to the contrary, when the court considers
other civil judgments rendered against the defendant for any crime
victim for the purposes of equitably allotting moneys, the court
shall review such judgment and shall consider for allotment only
that portion of the civil judgment which relates to the crime which
produced the crime profits.
(c)Moneys in the escrow account shall not be subject to
execution, levy, attachment or lien except in accordance with the
priority of claims established in this subdivision.
§14-2B-9. Acts to defeat intent of article void as a against
public policy.
Any action taken by any defendant, whether by way of execution
of a power of attorney, creation of corporate entities or
otherwise, to defeat the purpose of this article shall be null and
void as against the public policy of this state.
§14-2B-10. Commission of crime renders consent to jurisdiction.
A person who commits a crime in this state submits to the
jurisdiction of the courts of this state for a proceeding brought
under this article. A person, firm, corporation, partnership,
association or other legal entity which knowingly contracts for,
pays, or agrees to pay, any profit to a defendant who commits a
crime in this state submits to the jurisdiction of the courts of
this state for a proceeding brought under this article. Service of
process may be perfected according to the rules of civil procedure.
§14-2B-11. Failure of defendant or person, firm, corporation,
partnership, association or other legal entity
contracting with defendant to provide notice to
prosecutor or pay over moneys to prosecutor as
required by article; civil penalty of treble damages
therefor; minimum civil penalty.
Notwithstanding any provision of this article to the contrary,
if any defendant or any person, firm, corporation, partnership,
association or other legal entity which knowingly contracts for,
pays, or agrees to pay to a defendant, any crime profits as defined
in section one of this article, fails to submit a copy of such
contract to the prosecutor of the circuit court of the county in
which the defendant is charged with or is being prosecuted or was
prosecuted for the commission of the crime, or fails to pay over to
the prosecutor any moneys which would otherwise, by the terms of
such contract, be owing to the defendant, such defendant or such
person, firm, corporation, partnership, association or other legal entity shall be civilly liable in the interpleader action
authorized by this article for treble damages to each party in
whose favor judgment is entered.
NOTE: The purpose of this bill is to provide a mechanism
whereby profits generated by defendants as a result of the
commission of a crime may be distributed to any person or entity
damaged as a result of the commission of the crime, including any
instrumentality of the state or political subdivision thereof which
expended taxpayer funds to prosecute and incarcerate the defendant.