Senate Bill No. 9
(By Senator Buckalew)
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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 sections two, nine and seventeen,
article twelve, chapter sixty-two of the code of West
Virginia, one thousand nine hundred thirty-one, as amended,
all relating to criminal procedure; probation and parole;
and requiring certain felony and sexual offenders to
advertise when they are to be released and where they will
be living in advance of their probation or parole.
Be it enacted by the Legislature of West Virginia:
That sections two, nine and seventeen, article twelve,
chapter sixty-two of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, be amended and reenacted, all 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 applies 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 is
not be applicable unless such fact is clearly stated and included
in the indictment or presentment by which such 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 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 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 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 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 Do not apply with respect to cases not affected by such amendment and in such cases the prior provisions of this
section shall apply and be construed without reference to such
amendment; and
Insofar as such 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 person
shall only be eligible for probation after undergoing a physical,
mental and psychiatric study and diagnosis which shall include an
on-going 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 study or diagnosis shall may 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 information disclosed shall indicate indicates 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 persons as might be necessary for
protection of the said person, animal, institution or property:
Provided, however, That all such persons, and any person who has
been found guilty of, or pleaded guilty to, a felony involving a
crime of violence or a sexual offense shall be required to
advertise, as a condition of release on probation or parole, at
his or her own expense, the date of his or her release and where
he or she will be living, at least one month in advance of his or
her release on probation or parole. The advertisement shall be
a two by three inch advertisement published in a local newspaper
of general circulation in the county in which the person will be
residing.
§62-12-9. Conditions of release on probation.
(a) Release on probation shall be upon the following
conditions:
(1) That the probationer shall may not, during the term of
his or her probation, violate any criminal law of this or any
other state or of the United States.
(2) That he shall or she may not, during the term of his or her probation, leave the state without the consent of the court
which placed him or her on probation.
(3) That he or she shall comply with the rules and
regulations prescribed by the court or by the board of probation
and parole, as the case may be, for his or her supervision by the
probation officer.
(4) That in every case wherein the probationer has been
convicted of an offense defined in section twelve, article eight,
chapter sixty-one of this code or article eight-b or eight-d of
said chapter, against a child, the probationer shall may not live
in the same residence as any minor child, nor exercise visitation
with any minor child and shall may not have no contact with the
victim of the offense: Provided, That the probationer may
petition the court of the circuit wherein he or she was so
convicted for a modification of this term and condition of his or
her probation and the burden shall rest upon the probationer to
demonstrate that a modification is in the best interest of the
child.
(5) That the probationer be required to pay a fee, based
upon his or her ability to pay, not to exceed twenty dollars per
month to defray costs of supervision. All moneys collected as
fees from probationers shall be deposited with the circuit clerk
who shall, on a monthly basis, remit said moneys collected to the state treasurer for deposit in the state general revenue fund.
(b) In addition the court may impose, subject to
modification at any time, any other conditions which it may deem
advisable, including, but not limited to, any of the following:
(1) That he or she shall make restitution or reparation, in
whole or in part, immediately or within the period of probation,
to any party injured by the crime for which he or she has been
convicted.
(2) That he or she shall pay any fine assessed and the costs
of the proceeding in such installments as the court may direct.
(3) That he or she shall make contribution from his or her
earnings, in such sums as the court may direct, for the support
of his or her dependents.
(4) That he or she shall, in the discretion of the court, be
required to serve a period of confinement in the county jail of
the county in which he or she was convicted for a period not to
exceed one third of the minimum sentence established by law or
one third of the least possible period of confinement in an
indeterminate sentence, but in no case shall may such period of
confinement exceed six consecutive months. The court shall have
authority to sentence the defendant within such six-month period
to intermittent periods of confinement including, but not limited
to, weekends or holidays and may grant unto the defendant intermittent periods of release in order that he or she may work
at his or her employment or for such other reasons or purposes as
the court may deem appropriate: Provided, That the provisions of
article eleven-a of this chapter shall do not apply to such
intermittent periods of confinement and release except to the
extent that the court may direct. If a period of confinement is
required as a condition of probation, the court shall make
special findings that other conditions of probation are
inadequate and that a period of confinement is necessary.
(5) That any probationer who has been found guilty of, or
pleaded guilty to, a felony involving a crime of violence or a
sexual offense shall be required to advertise, as a condition of
release on probation, at his or her own expense, the date of his
or her release and where he or she will be living, at least one
month in advance of his or her release on probation. The
advertisement shall be a two by three inch advertisement
published in a local newspaper of general circulation in the
county in which the person will be residing.
§62-12-17. Conditions of release on parole.
Release and supervision on parole of any person, including
the supervision by the division of corrections of any person
paroled by any other state or by the federal government, shall be
upon the following conditions:
(1) That the parolee may not, during the period of his or
her parole, violate any criminal law of this or any other state
or of the United States.
(2) That he or she may not, during the period of his or her
parole, leave the state without the consent of the division.
(3) That he or she shall comply with the rules and
regulations prescribed by the division for his or her supervision
by the parole officer.
(4) That in every case wherein the parolee for a conviction
is seeking parole from an offense against a child, defined in
section twelve, article eight, chapter sixty-one of this code; or
article eight-b or eight-d of said chapter, or similar
convictions from other jurisdictions where the parolee is
returning or attempting to return to this state pursuant to the
provisions of article six, chapter twenty-eight of this code, the
parolee shall may not live in the same residence as any minor
child, nor exercise visitation with any minor child nor shall may
he or she have any contact with the victim of the offense.
(5) That the parolee, and all federal or foreign state
probationers and parolees whose supervision may have been
undertaken by this state, shall be required to pay a fee, based
on his or her ability to pay, not to exceed twenty dollars per
month to defray costs of supervision. The commissioner shall keep a record of all actions taken and account for moneys
received. No provision of this section shall may be construed to
prohibit the division from collecting such fees and conducting
such checks upon the effective date of this section. All moneys
shall be deposited in a special account in the state treasury to
be known as the "Parolee's Supervision Fee Fund." Expenditures
from said fund shall be for the purposes of providing parole
supervision required by the provisions of this code and are not
authorized from collections but are to be made only in accordance
with appropriation by the Legislature and in accordance with the
provisions of article three, chapter twelve of this code and upon
the fulfillment of the provisions set forth in article two,
chapter five-a of this code: Provided, That for the fiscal year
ending the thirtieth day of June, one thousand nine hundred
ninety-four, expenditures are authorized from collections rather
than pursuant to an appropriation by the Legislature. Amounts
collected which are found from time to time to exceed the funds
needed for purposes set forth in this article may be transferred
to other accounts or funds and redesignated for other purposes by
appropriation of the Legislature. The division shall consider
the following factors in determining whether a parolee or
probationer is financially able to pay the fee:
(A) Current income prospects for the parolee or probationer, taking into account seasonal variations in income;
(B) Liquid assets of the parolee or probationer, assets of
the parolee or probationer that may provide collateral to obtain
funds and assets of the parolee or probationer that may be
liquidated to provide funds to pay the fee;
(C) Fixed debts and obligations of the parolee or
probationer, including federal, state and local taxes and medical
expenses;
(D) Child care, transportation and other reasonably
necessary expenses of the parolee or probationer related to
employment;
(E) The reasonably foreseeable consequences for the parolee
or probationer if a waiver of, or reduction in, the fee is
denied.
(6) That any parolee who has been found guilty of, or
pleaded guilty to, a felony involving a crime of violence or a
sexual offense shall be required to advertise, as a condition of
release on parole, at his or her own expense, the date of his
or her release and where he or she will be living, at least
one month in advance of his or her release on parole. The
advertisement shall be a two by three inch advertisement
published in a local newspaper of general circulation in the
county in which the person will be residing.
In addition, the division may impose, subject to
modification at any time, any other conditions which the division
may deem advisable.
NOTE: The purpose of this bill is to require certain
criminal offenders, convicted of crimes of violence or crimes
involving sex offenses, to advertise when they are to be released
and where they will be living in advance of their probation or
parole.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.