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.