COMMITTEE SUBSTITUTE
FOR
H. B. 4068
(By Mr. Speaker, Mr. Kiss, and Delegate Trump)
[By Request of the Executive]
(Originating in the House Committee on
the Judiciary)
[January 26, 2000]
A BILL to amend and reenact section four, article eleven-a,
chapter sixty-one of the code of West Virginia, one thousand
nine hundred thirty-one, as amended, relating to defendant
restitution to victim assistance programs; and authorizing
courts to order defendants to contribute monetarily or
through hours of community service to local victim's crime
assistance programs as restitution.
Be it enacted by the Legislature of West Virginia:
That section four, article eleven-a, 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 11A. VICTIM PROTECTION ACT OF 1984.
§61-11A-4. Restitution; when ordered.
(a) The court, when sentencing a defendant convicted of a
felony or misdemeanor causing physical, psychological or economic injury or loss to a victim, shall order, in addition to or in
lieu of any other penalty authorized by law, that the defendant
make restitution to any victim of the offense, unless the court
finds restitution to be wholly or partially impractical as set
forth in this article. If the court does not order restitution,
or orders only partial restitution, under this section, the court
shall state on the record the reasons therefor.
(b) The order shall is to require that such the defendant:
(1) In the case of an offense resulting in damage to, loss
of, or destruction of property of a victim of the offense:
(A) Return the property to the owner of the property or
someone designated by the owner; or
(B) If return of the property under subparagraph (A) above
is impossible, impractical or inadequate, pay an amount equal to
the greater of: (i) The value of the property on the date of
sentencing; or (ii) The value of the property on the date of the
damage, loss or destruction less the value (as of the date the
property is returned) of any part of the property that is
returned;
(2) In the case of an offense resulting in bodily injury to
a victim:
(A) Pay an amount equal to the cost of necessary medical and related professional services and devices relating to physical,
psychiatric and psychological care, including nonmedical care and
treatment rendered in accordance with a method of healing
recognized by the law of the place of treatment;
(B) Pay an amount equal to the cost of necessary physical
and occupational therapy and rehabilitation; and
(C) Reimburse the victim for income lost by such the victim
as a result of such the offense;
(3) In the case of an offense resulting in bodily injury
that also results in the death of a victim, pay an amount equal
to the cost of necessary funeral and related services; and
(4) In any case, if the victim (or if the victim is
deceased, the victim's estate) consents, or if payment is
impossible or impractical, make restitution in services in lieu
of money, or make restitution to a person or organization
designated by the victim or the estate.
(c) In addition to restitution ordered under subsections (a)
or (b) of this section, a court may order a defendant to make
restitution either monetarily or through hours of service to a
crime victim's assistance program that meets the following
requirements:
(1) The program is approved by a circuit judge presiding in that judicial circuit; and
(2) The program is run by an organization that is exempt
from federal income taxation under subsection 501(a) and
described in subsections 501(c)(3) or 501(c)(4) of the Internal
Revenue Code of 1986 as codified in Title 26 of the United States
Code, as amended.
(c) (d) If the court decides to order restitution under
subsections (a) or (b) of this section, the court shall, if the
victim is deceased, order that the restitution be made to the
victim's estate.
(d) (e) The court shall impose an order of restitution to
the extent that such the order is as fair as possible to the
victim and the imposition of such the order will not unduly
complicate or prolong the sentencing process.
(e) (f) The court shall may not impose restitution with
respect to a loss for which the victim has received or is to
receive compensation, except that the court may, in the interest
of justice, order restitution to any person who has compensated
the victim for such the loss to the extent that such the person
paid the compensation. An order of restitution shall is to
require that all restitution to victims under such the order be
made before any restitution to any other person under such the order is made.
(f) (g) The court may require that such the defendant make
restitution under this section within a specified period or in
specified installments. The end of such the period or the last
such installment shall may not be later than: (i) The end of the
period of probation, if probation is ordered; (ii) five years
after the end of the term of imprisonment imposed, if the court
does not order probation; and (iii) five years after the date of
sentencing in any other case. If not otherwise provided by the
court under this subsection, restitution shall is to be made
immediately.
(g) (h) If such the defendant is placed on probation or
paroled under this article, any restitution ordered under this
section shall be is a condition of such probation or parole
unless the court or parole board finds restitution to be wholly
or partially impractical as set forth in this article. The court
may revoke probation and the parole board may revoke parole if
the defendant fails to comply with such the order. In
determining whether to revoke probation or parole, the court or
parole board shall consider the defendant's employment status,
earning ability, financial resources, the willfulness of the
defendant's failure to pay, and any other special circumstances that may have a bearing on the defendant's ability to pay.
(h) (i) An order of restitution may be enforced by the
state, a victim or a crime victim's assistance program named in
the order to receive the restitution in the same manner as a
judgment in a civil action.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.