COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 233
(By Senator Jackson, By Request)
____________
[Originating in the Committee on the Judiciary;
reported March 31, 1997.]
____________
A BILL to amend and reenact section sixteen, article four,
chapter sixty-two of the code of West Virginia, one thousand
nine hundred thirty-one, as amended; and to amend and
reenact section one-a, article eleven-a of said chapter, all
relating to community service being credited against
criminal fine or confinement; limitations; provisions for
punishing willful failure to perform community service;
approval of entities for which work may be performed; and
standards of proof.
Be it enacted by the Legislature of West Virginia:
That section sixteen, article four, chapter sixty-two of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted; and that section one-a,
article eleven-a of said chapter be amended and reenacted, all to read as follows:
ARTICLE 4. RECOVERY OF FINES IN CRIMINAL CASES.
§62-4-16. Community service work may be substituted in lieu of a
fine in municipal court.
Whenever any person shall be convicted for any violation of
ordinances or laws of any incorporated city, town or village, and
shall be confined in the county jail, or place of confinement
adopted and set apart by the council of such city, town or
village, in lieu of the county jail, as a prison house, whether
such person be imprisoned for failure to pay any fine adjudged
against him, or under sentence of a mayor, police judge or court,
he may be ordered by such mayor, police judge, or court to work
on the public streets and alleys of such city, town or village,
under the direction of the marshal or sergeant of such city, town
or village. Such person so fined and imprisoned, when ordered to
be worked as hereinbefore provided, shall be worked under the
provisions and subject to the penalties prescribed in article
fifteen, chapter seventeen of this code, insofar as the same are
applicable. And the council of such city, town, or village or
the county commission may
make proper allowance to the marshal or sergeant municipal police
or county sheriff to take charge
of such the person or persons while so at work, under the community
services programs, and allow and pay a
reasonable compensation for the supervision services rendered, out of the
treasury of such the county, city, town or village.
(a) Notwithstanding any provision of this code to the
contrary, a municipal judge may substitute in lieu of the
imposition of a sentence of incarceration or imposition of a
fine, substitute community service work for such incarceration or
fine. The minimum wage established by the prevailing federal
minimum wage in effect or the time of sentencing is imposed shall
be used to compute the amount of community service work necessary
to extinguish the sentence of incarceration or fine. In the
discretion of the court, the sentence credits may run
concurrently or consecutively.
(b) Any community service ordered pursuant to the provisions
of this section shall be performed for government entities or
charitable or nonprofit entities and be supervised by the chief
of police of the municipality or his or her designee.
(c) Any person who is sentenced to community service in lieu
of a fine or incarceration who willfully fails to perform such
ordered community service, may, after a hearing wherein he or she
has been found to have willfully failed to perform the period of
community service ordered be subject to any period of
incarceration or amount of fine available to the court upon the
person's conviction: Provided, That credit against any sentence
of incarceration or fine imposed shall credit any community
service work actually performed. The standard of proof required to show willful failure to perform community service work shall
be reasonable cause.
ARTICLE 11A. RELEASE FOR WORK AND OTHER PURPOSES.
§62-11A-1a. Other sentencing alternatives.
(a) Any person who has been convicted in a circuit court or in
a magistrate court under any criminal provision of this code of
a misdemeanor or felony, which is punishable by imposition of a
fine or confinement in the county or regional jail or the state
penitentiary, or both fine and confinement, may, in the
discretion of the sentencing judge or magistrate, as an
alternative to the sentence imposed by statute for such the
crime, be sentenced under one of the following programs:
(1) The weekend jail program under which persons would be
required to spend weekends or other days normally off from work
in jail;
(2) The work program under which sentenced persons would be
required to spend the first two or more days of their sentence in
jail and then, in the discretion of the court, would be assigned
to a county agency to perform labor within the jail, or in and
upon the buildings, grounds, institutions, bridges, roads,
including orphaned roads used by the general public and public
works within the county. Eight hours of such labor shall be
credited as one day of the sentence imposed. Persons sentenced under this program may be required to provide their own
transportation to and from the work site, lunch and work clothes;
or
(3) The community service program under which persons
sentenced would spend no time in jail but would be sentenced to
a number of hours or days of community service work with tax
supported agencies government entities or charitable or nonprofit
entities approved by the circuit court. Regarding any portion of
the sentence designated as confinement, eight hours of community
service work shall be credited as one day of the sentence
imposed. Regarding any portion of the sentence designated as a
fine, the fine shall be credited at an hourly rate equal to the
prevailing federal minimum wage at the time the sentence was
imposed. In the discretion of the court, the sentence credits
may run concurrently or consecutively. Persons sentenced under
this program may be required to provide their own transportation
to and from the work site, lunch and work clothes.
(b) In no event may the duration of the alternate sentence
exceed the maximum period of incarceration otherwise allowed.
(c) In imposing a sentence under the provisions of this
section, the court shall first make the following findings of
fact and incorporate them into the court's sentencing order:
(1) The person sentenced was not convicted of an offense for
which a mandatory period of confinement is imposed by statute;
(2) In circuit court cases, that the person sentenced is not
a habitual criminal within the meaning of sections eighteen and
nineteen, article eleven, chapter sixty-one of this code;
(3) In circuit court cases, that adequate facilities for the
administration and supervision of alternative sentencing programs
are available through the court's probation officers or the
county sheriff or, in magistrate court cases, that adequate
facilities for the administration and supervision of alternative
sentencing programs are available through the county sheriff; and
(4) That an alternative sentence under provisions of this
article will best serve the interests of justice.
(d) Persons sentenced by the circuit court under the
provisions of this article shall remain under the administrative
custody and supervision of the court's probation officers or the
county sheriff. Persons sentenced by a magistrate shall remain
under the administrative custody and supervision of the county
sheriff.
(e) Persons sentenced under the provisions of this section may
be required to pay the costs of their incarceration, including
meal costs, at the discretion of the court.
(f) Persons sentenced under the provisions of this section
remain under the jurisdiction of the court. The court may
withdraw any alternative sentence at any time by order entered
with or without notice and require that the remainder of the sentence be served in the county jail: Provided, That no
alternative sentence directed by the sentencing judge or
magistrate or administered under the supervision of the sheriff,
his or her deputies, a jailer or a guard, shall require the
convicted person to perform duties which would be considered
detrimental to the convicted person's health as attested by a
physician.
____________
(NOTE: The purpose of this bill is to provide a method to
credit community service against a criminal fine or confinement.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that
would be added.)