Senate Bill No. 23

(By Senators Buckalew, Kimble, Deem and Bailey)

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[Introduced February 12, 1997; referred to the

Committee on the Judiciary.]

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A BILL to amend and reenact section ten-a, article two, chapter sixty-one of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to crimes against the elderly; providing that sentence not subject to suspension or probation; and admissibility of hearsay evidence.

Be it enacted by the Legislature of West Virginia:
That section ten-a, article two, chapter sixty-one of the
code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted to read as follows:
ARTICLE 2. CRIMES AGAINST THE PERSON.
§61-2-10a. Violent crimes against the elderly; sentence not subject to suspension or probation.

(a) If any person be convicted and sentenced for an offense defined under the provisions of section nine or ten of this article a felony or attempted felony, and if the person shall have committed such offense against a person who is sixty-five years of age or older, then the sentence shall be mandatory and shall not be subject to suspension or probation. Provided, That the court may, in its discretion, suspend the sentence and order probation to any person so convicted upon condition that such person perform public service for a period of time deemed appropriate by the court, which service shall be rendered in or about facilities or programs providing care or services for the elderly: Provided, however, That the court may apply the provisions of article eleven-a, chapter sixty-two of this code to a person committed to a term of one year or less
(b) The existence of any fact which would make any person ineligible for probation under subsection (a) of this section because of the commission or attempted commission of a felony against a victim sixty-five years of age or older shall not be applicable unless such fact is: (i) Found by the court upon a plea of guilty or nolo contendere; or (ii) found by the jury, if the matter is tried before a jury; or (iii) found by the court, if the matter is tried by the court, without a jury.
(c) In any trial upon an indictment for commission of a felony wherein the victim of the crime is a person sixty-five years of age or older, hearsay testimony which does not otherwise fall within one of the exceptions to the hearsay rule found in rule 801, 802, 803, 804, 805 or 806 of the West Virginia rules of criminal procedure shall be admissible into evidence.




NOTE: The purpose of this bill is to change the applicability of this section from certain offenses to include only felonies and attempted felonies. The bill further removes the right of the court to suspend sentences for persons convicted under this section and permits hearsay evidence.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.