COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 461
(By Senator Bowman)
____________
[Originating in the Committee on the Judiciary;
reported March 2, 1995.]
__________
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 CRIME PROFITS.
§14-2B-1. Short title.
This article shall be known and may be cited as the "West
Virginia Crime Profits 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 gain a monetary 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:
(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 which has expended or
will likely expend taxpayer funds as the result of the commission
of the crime may bring a writ of mandamus to compel the prosecutor
to bring an interpleader action as 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 issues of entitlement to and the amount of damages
arising from any claim of any instrumentality of the state or
political subdivision thereof or of any crime victim, except that
such claims that have already been reduced to judgment in any other
civil action 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.
(e) 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 same crime which has or may result in
the generating of crime profits.
§14-2B-6. Authority of prosecutor to make payments from escrow
account for the necessary expenses of protection of
moneys paid into the escrow account; payment of
moneys to defendant when 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 any affected
instrumentality of the state or political subdivision thereof or of the crime victims and would not be contrary to public policy.
(b) If, at any time prior to the filing of an interpleader
action as authorized by this article, the charges against the
defendant are dismissed or the defendant is acquitted of such
charges in circumstances other than a finding by a court of record
that the defendant is 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 been or may later be 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 and in such proportions 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 and in
such proportions as the court may direct. If an escrow account is
established and the court also 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 and in such
proportions as the court may direct.
(c) Upon the dismissal of charges against the defendant or
upon the acquittal of the defendant in circumstances other than a
finding by a court of record that the defendant is 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 that no actions are pending
against such defendant pursuant to this article, the court shall order the prosecutor to immediately pay over to such defendant or
his legal representative, the moneys, including accrued interest,
in the escrow account.
(e) Upon a showing by the defendant that moneys in the escrow
account 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 behalf of the defendant.
§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 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. 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. For purposes of
this section, service of process may be perfected in accordance
with the West Virginia rules of civil procedure for trial courts of
record.
§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 this article; civil penalty of treble
damages.
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 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.