H. B. 2772
(By Delegates Buchanan, Staton,
Fleischauer and Trump)
[Introduced March 27, 1997; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact section two, article twelve, chapter
sixty-two of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, relating to probation and
parole; providing that persons who commit felony property
crimes when they are between the ages of eighteen and
twenty-one shall receive probation; expungement of record.
Be it enacted by the Legislature of West Virginia:
That section two, article twelve, chapter sixty-two, of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted to read as follows:
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 eligible for probation,
notwithstanding the provisions of sections eighteen and nineteen,
article eleven, chapter sixty-one 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 for probation. Nothing in this
section shall 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 not
be applicable unless such the fact is clearly stated and included
in the indictment or presentment by which such the person is
charged and is either (i) found by the court upon a plea of
guilty or nolo contendere, or (ii) 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 (iii) 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 one thousand nine hundred eighty-one:
(A) Shall apply to all applicable offenses occurring on or
after the first day of August of that year;
(B) Shall apply with respect to the contents of any
indictment or presentment returned on or after the first day of
August 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 the first day of
August 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 the finding by the jury or court, as the case
may be, which notice shall state with particularity the grounds
upon which such finding shall be sought as fully as such the
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 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 the 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 mean 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 felony or misdemeanor under the
provisions of section twelve or twenty-four, article eight of
chapter sixty-one, or under the provisions of article eight-c or
eight-b, both of chapter sixty-one, all of this code, such the
person shall only be eligible for probation after undergoing a
physical, mental and psychiatric 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 the study or diagnosis shall 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 indicate the
intention or plans of the probationer to do harm to any person,
animal, institution or property, in which case such information
may be released only to such the persons as might be necessary
for protection of the said the person, animal, institution or property.
(f)(1) Notwithstanding any part of the code to the contrary,
any person who commits a felony offense against property as such
crime is defined in article three, chapter sixty-one of the code,
when he or she is between the age of eighteen and twenty-one, and
is found guilty or pleads guilty to such felony offense, shall be
placed on probation upon terms and conditions not to exceed three
years: Provided, That such person has not previously been
convicted of any offense under chapter sixty-one or under any
statute of the United States or of any state: Provided, however,
That the provisions of this subsection shall not apply to
property crimes as defined in sections one, two, four, five, six
and seven of article three, chapter sixty-one of the code.
(2) After a period of not less than six months which shall
begin to run immediately upon the expiration of a term of
probation imposed upon any person under this subsection, the
person may apply to the court for an order to expunge from all
official records all recordation of his or her arrest, trial and
conviction. If the court determines after a hearing that the
person during the period of probation and during the period of
time prior to his or her application to the court under this
subsection has not been guilty of any serious or repeated
violation of the conditions of the probation, it shall enter such an order.
NOTE: The purpose of this bill is to require probation for
persons between the ages of eighteen and twenty-one who commit
felony property crimes. The bill further provides for
conditional expungement of record.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.