Senate Bill No. 415
(By Senator Schoonover)
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[Introduced February 17, 1995; referred to the Committee
on the Judiciary.]
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A BILL to amend and reenact section ten, article five, chapter
forty-nine of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, relating to decreasing the
standard of proof to have juveniles tried as adults from
clear and convincing evidence to probable cause; abolishing
the requirement of a hearing; abolishing the ground for
removal to criminal jurisdiction that child is sixteen years
of age or older and has committed an offense of violence to
the person which would be a felony if committed by an adult;
and providing for a hearing after transferring to criminal
jurisdiction.
Be it enacted by the Legislature of West Virginia:
That section ten, article five, chapter forty-nine of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted to read as follows:
ARTICLE 5. JUVENILE PROCEEDINGS.
§49-5-10. Waiver and transfer of jurisdiction.
(a) Upon written motion of the prosecuting attorney, filed
with the juvenile petition or at any time thereafter, and at
least eight days prior to the adjudicatory hearing and with
reasonable notice to the child, the parents, guardians, or
custodians of the child, and the child's counsel, the court shall
conduct a hearing to determine if juvenile jurisdiction should be
waived and the proceeding should be transferred to the criminal
jurisdiction of the court. Any motion filed in accordance with
this section shall state, with particularity, the grounds for the
requested transfer, including the grounds relied upon set forth
in subsection (d) of this section, and the burden shall be upon
the state to establish such grounds by clear and convincing
proof. Any hearing held under the provisions of this section
shall be held within seven days of the filing of the motion for
transfer unless it is continued for good cause the proceeding
shall be transferred to the criminal jurisdiction of the court in any case where it appears from the verified allegations in the
petition that there is probable cause to believe that:
(1) The child has committed the crime of treason under
section one, article one, chapter sixty-one of this code; the
crime of murder under sections one, two and three, article two,
chapter sixty-one of this code; the crime of robbery involving
the use or presenting of firearms or other deadly weapons under
section twelve, article two, chapter sixty-one of this code; the
crime of kidnapping under section fourteen-a, article two,
chapter sixty-one of this code; the crime of first degree arson
under section one, article three, chapter sixty-one of this code;
or charging sexual assault in the first degree under section
three, article eight-b, chapter sixty-one of this code, and in
such case, the existence of such probable cause shall be
sufficient grounds for transfer without further inquiry; or
(2) A child has committed an offense of violence to the
person which would be a felony if the child were an adult:
Provided, That the child has been previously adjudged delinquent
for the commission of an offense which would be a violent felony
if the child were an adult; or
(3) A child has committed an offense which would be a felony if the child were an adult: Provided, That the child has been
twice previously adjudged delinquent for the commission of an
offense which would be a felony if the child were an adult.
(b) No inquiry relative to admission or denial of the
allegations of the charge or the demand for jury trial shall be
made by or before the court until a decision shall have been made
relative to whether the proceeding is to be transferred to
criminal jurisdiction. Upon transfer of the child to the
criminal jurisdiction of the court, the child may at any time
within ten days of the date thereof, move to have all further
proceedings transferred to the juvenile jurisdiction of the
court. Any motion, filed in accordance with this section shall
state, with particularity, the grounds for the requested
transfer. Unless for good cause shown, the court shall hear the
motion within ten days of the filing thereof.
(c) The court shall transfer a juvenile proceeding to
criminal jurisdiction if a child who has attained the age of
sixteen years shall make a demand on the record to be transferred
to the criminal jurisdiction of the court. Such cases may then
be referred to a magistrate for trial, if otherwise cognizable by
a magistrate. Until such time as there has been a final determination of whether the proceedings against the child shall
be in the criminal or juvenile jurisdiction of the court, the
child shall be incarcerated when appropriate, only in an approved
juvenile detention facility or in an approved segregated section
of a county or regional jail.
(d) At the hearing provided in subsection (b) of this
section, the court may, upon consideration of the child's mental
and physical condition, maturity, emotional attitude, home or
family environment, school experience and similar personal
factors, transfer a juvenile proceeding to criminal jurisdiction
if there is probable cause to believe that: the criminal
proceedings to the juvenile jurisdiction of the court, unless
there is probable cause to believe that the child has committed
one of the offenses set forth in subdivisions (1), (2) and (3),
subsection (a) of this section, and that there are no extenuating
circumstances.
(1) The child has committed the crime of treason under
section one, article one, chapter sixty-one of this code; the
crime of murder under sections one, two and three, article two,
chapter sixty-one of this code; the crime of robbery involving
the use or presenting of firearms or other deadly weapons under section twelve, article two, chapter sixty-one of this code; the
crime of kidnapping under section fourteen-a, article two,
chapter sixty-one of this code; the crime of first degree arson
under section one, article three, chapter sixty-one of this code;
or charging sexual assault in the first degree under section
three, article eight-b, chapter sixty-one of this code, and in
such case, the existence of such probable cause shall be
sufficient grounds for transfer without further inquiry; or
(2) A child has committed an offense of violence to the
person which would be a felony if the child were an adult:
Provided, That the child has been previously adjudged delinquent
for the commission of an offense which would be a violent felony
if the child were an adult; or
(3) A child has committed an offense which would be a felony
if the child were an adult: Provided, That the child has been
twice previously adjudged delinquent for the commission of an
offense which would be a felony if the child were an adult.
(4) A child, sixteen years of age or over, has committed an
offense of violence to the person which would be a felony if
committed by an adult; or
(5) A child, sixteen years of age or over, has committed an offense which would be a felony if committee by an adult:
Provided, That such child has been previously adjudged delinquent
for an offense which would be a felony if the child were an
adult.
(e) If, after a hearing, the court directs the transfer of
any juvenile proceeding to criminal jurisdiction, it shall state
on the record the findings of fact and conclusions of law upon
which its decision is based or shall incorporate such findings of
fact and conclusions of law in its order directing transfer.
(f) (e) The child shall have the right to directly appeal an
order of transfer to the supreme court of appeals of the state of
West Virginia: Provided, That notice of intent to appeal and a
request for transcript be filed within ten days from the date of
the entry of any such order and the petition for appeal shall be
presented to the supreme court of appeals within forty-five days
from the entry of such order, and that, in default thereof, the
right of appeal and the right to object to such order of transfer
shall be waived and may not thereafter be asserted. The
provisions of article five, chapter fifty-eight of this code
pertaining to the appeals of judgments in civil actions shall
apply to appeals under this chapter except as herein modified. The judge of the circuit court may, prior to the expiration of
such period of forty-five days, by appropriate order, extend and
reextend such period for such additional period or periods, not
to exceed a total extension of sixty days, as in his opinion may
be necessary for preparation of the transcript: Provided, That
the request for such transcript was made by the party seeking
appeal within ten days of entry of such order of transfer. In
the event any such notice of intent to appeal and request for
transcript be timely filed, proceedings in criminal court shall
be stayed upon motion of the defendant pending final action of
the supreme court of appeals thereon.
NOTE: The purpose of this bill is to change the standard of
proof to move a juvenile to the criminal jurisdiction; abolishing
the requirement of a hearing; abolishing the ground for removal
to criminal jurisdiction that child is sixteen years of age or
older and has committed an offense of violence to the person
which would be a felony if committed by an adult; and providing
for a hearing after transferring to criminal jurisdiction.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.