Senate Bill No. 617
(By Senator Unger, Mitchell, Helmick, Ross, Minard and
Anderson)
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[Introduced February 21, 2000; referred to the
Committee on the Judiciary.]
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A BILL to amend and reenact section ten, article five, chapter
forty-nine of the code of West Virginia, one thousand nine
hundred thirty-one, as amended; to amend and reenact section
two, article seven-a, chapter fifty-five of said code; and
to amend and reenact section seventeen, article six, chapter
sixty-one of said the code, all relating to false reporting
of bombs; making bomb threat at a school a felony; requiring
minors to be tried as adults; and making parents liable for
damages at discretion of the court.
Be it enacted by the Legislature of West Virginia:
That section ten, article five, chapter forty-nine of the code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted; that section two, article
seven-a, chapter fifty-five of said code be amended and
reenacted; and that section seventeen, article six, chapter
sixty-one of said code be amended and reenacted, all to read as
follows:
CHAPTER 49. CHILD WELFARE.
ARTICLE 5. JUVENILE PROCEEDINGS.
§49-5-10. W
aiver and transfer of jurisdiction.
(a) Upon written motion of the prosecuting attorney filed at
least eight days prior to the adjudicatory hearing and with
reasonable notice to the juvenile, his or her counsel, and his or
her parents, guardians or custodians, the court shall conduct a
hearing to determine if juvenile jurisdiction should or must be
waived and the proceeding transferred to the criminal
jurisdiction of the court. Any motion filed in accordance with
this section shall state, with particularity, the grounds for the
requested transfer, including the grounds relied upon as set
forth in subsection (d), (e), (f) or (g) of this section and the
burden shall be upon the state to establish such grounds by clear
and convincing evidence. Any hearing held under the provisions of this section shall be held within seven days of the filing of
the motion for transfer unless it is continued for good cause.
(b) No inquiry relative to admission or denial of the
allegations of the charge or the demand for jury trial may be
made by or before the court until the court has determined
whether the proceeding is to be transferred to criminal
jurisdiction.
(c) The court shall transfer a juvenile proceeding to
criminal jurisdiction if a juvenile who has attained the age of
fourteen years makes a demand on the record to be transferred to
the criminal jurisdiction of the court. The case may then be
referred to magistrate or circuit court for further proceedings,
subject to the court's jurisdiction.
(d) The court shall transfer a juvenile proceeding to
criminal jurisdiction if there is probable cause to believe that:
(1) The juvenile is at least fourteen years of age and has
committed the crime of treason under section one, article one,
chapter sixty-one of this code; the crime of murder under
sections one, two and three, article two of said chapter; the
crime of robbery involving the use or presenting of firearms or other deadly weapons under section twelve of said article; the
crime of kidnapping under section fourteen-a of said article; the
crime of first degree arson under section one, article three of
said chapter; the crime of making or causing to be made a false
report of a bomb or other explosive device at a school under
section seventeen, article six of said chapter; or the crime of
sexual assault in the first degree under section three, article
eight-b of said chapter; or
(2) The juvenile is at least fourteen years of age and has
committed an offense of violence to the person which would be a
felony if the juvenile were an adult: Provided, That the
juvenile has been previously adjudged delinquent for the
commission of an offense of violence to the person which would be
a felony if the juvenile were an adult; or
(3) The juvenile is at least fourteen years of age and has
committed an offense which would be a felony if the juvenile were
an adult: Provided, That the juvenile has been twice previously
adjudged delinquent for the commission of an offense which would
be a felony if the juvenile were an adult.
(e) The court may transfer a juvenile proceeding to criminal jurisdiction if there is probable cause to believe that the
juvenile would otherwise satisfy the provisions of subdivision
(1), subsection (d) of this section, but who is younger than
fourteen years of age.
(f) The court may, upon consideration of the juvenile's
mental and physical condition, maturity, emotional attitude, home
or family environment, school experience and similar personal
factors, transfer a juvenile proceeding to criminal jurisdiction
if there is probable cause to believe that the juvenile would
otherwise satisfy the provisions of subdivision (2) or (3),
subsection (d) of this section, but who is younger than fourteen
years of age.
(g) The court may, upon consideration of the juvenile's
mental and physical condition, maturity, emotional attitude, home
or family environment, school experience and similar personal
factors, transfer a juvenile proceeding to criminal jurisdiction
if there is probable cause to believe that:
(1) The juvenile, who is at least fourteen years of age, has
committed an offense of violence to a person which would be a
felony if the juvenile were an adult; or
(2) The juvenile, who is at least fourteen years of age, has
committed an offense which would be a felony if the juvenile were
an adult: Provided, That the juvenile has been previously
adjudged delinquent for the commission of a crime which would be
a felony if the juvenile were an adult; or
(3) The juvenile, who is at least fourteen years of age,
used or presented a firearm or other deadly weapon during the
commission of a felony; or
(4) The juvenile has committed a violation of the provisions
of section four hundred one, article four, chapter sixty-a of
this code which would be a felony if the juvenile were an adult
involving the manufacture, delivery or possession with the intent
to deliver a narcotic drug. For purposes of this subdivision,
the term "narcotic drug" has the same definition as that set
forth in section one hundred one, article one of said chapter.
(h) For purposes of this section, the term "offense of
violence" means an offense which involves the use or threatened
use of physical force against a person.
(i) If, after a hearing, the court directs the transfer of
any juvenile proceeding to criminal jurisdiction, it shall state on the record the findings of fact and conclusions of law upon
which its decision is based or shall incorporate such findings of
fact and conclusions of law in its order directing transfer.
(j) A juvenile who has been transferred to criminal
jurisdiction pursuant to the provisions of subsection (e), (f) or
(g) of this section, by an order of transfer entered after the
first day of July, one thousand nine hundred ninety-seven, shall
have the right to either directly appeal an order of transfer to
the supreme court of appeals or to appeal such order of transfer
following a conviction of the offense of transfer. If the
juvenile exercises the right to a direct appeal from an order of
transfer, the notice of intent to appeal and a request for
transcript shall be filed within ten days from the date of the
entry of any such order, and the petition for appeal shall be
presented to the supreme court of appeals within forty-five days
from the entry of such order. The provisions of article five,
chapter fifty-eight of this code pertaining to the appeals of
judgments in civil actions shall apply to appeals under this
chapter except as herein modified. The court may, within
forty-five days of the entry of the order of transfer, by appropriate order, extend and reextend the period in which to
file the petition for appeal for such additional time, not to
exceed a total exten
sion of
sixty days, as in the court's opinion
may be
necessary for prepara
tion of the transcript: Provided,
That the request for such transcript was made by the party
seeking appeal within ten days of entry of such order of
transfer. In the event any such notice of intent to appeal and
request for transcript be timely filed, proceedings in criminal
court shall be stayed upon motion of the defendant pending final
action of the supreme court of appeals thereon.
CHAPTER 55. ACTIONS, SUITS AND ARBITRATION;
JUDICIAL SALE.
ARTICLE 7A. LIABILITY OF PARENTS.
§55-7A-2. Parental liability for willful, malicious or criminal
acts of children.
(a) The custodial parent or parents of any minor child shall
be are personally liable in an amount not to exceed five thousand
dollars for damages which are the proximate result of any one or
a combination of the following acts of the minor child:
(a) (1) The malicious and willful injury to the person of another; or
(b) (2) The malicious and willful injury or damage to the
property of another, whether the property be real, personal or
mixed; or
(c) (3) The malicious and willful setting fire to a forest
or wooded area belonging to another; or
(d) (4) The willful taking, stealing and carrying away of
the property of another, with the intent to permanently deprive
the owner of possession.
(b) At the discretion of the court, the custodial parent or
parents of any minor child may be held personally liable in an
amount not to exceed ten thousand dollars for damages which are
the proximate result of the child's willful making of a false
report of a bomb or other explosive device at a school, or the
child's willful causing of such a report to be made.
(c) For purposes of this section, "custodial parent or
parents" shall mean means the parent or parents with whom the
minor child is living, or a divorced or separated parent who does
not have legal custody but who is exercising supervisory control
over the minor child at the time of the minor child's act.
(d) Persons entitled to recover damages under this article
shall include, but are not be limited to, the state of West
Virginia, any municipal corporation, county commission and board
of education, or other political subdivision of this state, or
any person or organization of any kind or character. The action
may be brought in magistrate or another court of competent
jurisdiction. Recovery hereunder shall be is limited to the
actual damages based upon direct out-of-pocket loss, taxable
court costs, and interest from date of judgment. The right of
action and remedy granted herein shall be is in addition to and
not exclusive of any rights of action and remedies therefor
against a parent or parents for the tortious acts of his or their
children a child of the parent or parents heretofore existing
under the provisions of any law, statutory or otherwise, or now
so existing independently of the provisions of this article.
(e) The provisions of this article shall be are applicable
to causes of action arising on and after the effective date of
reenactment of this article. Causes of actions arising before
the effective date of reenactment of this article and proceedings
thereon shall be are governed by the previously enacted provisions of this article in force at the time the cause arose.
CHAPTER 61. CRIMES AND THEIR PUNISHMENT.
ARTICLE 6. CRIMES AGAINST THE PEACE.
§61-6-17. False reports concerning bombs or other explosive
devices; penalties.
(a) Except as otherwise provided in this section, any person
who shall impart or convey or cause imparts, conveys or causes to
be imparted or conveyed any false information, knowing or having
reasonable cause to believe such information to be false,
concerning the presence of any bomb or other explosive device in,
at, on, near, under or against any dwelling house, structure,
improvement, building, bridge, motor vehicle, vessel, boat,
railroad car, airplane or other place, or concerning an attempt
or alleged attempt being made or to be made to so place or
explode any such bomb or other explosive device, shall be is
guilty of a misdemeanor and, upon conviction thereof, shall be
punished by a fine of fined not less than one hundred dollars nor
more than one thousand dollars, or by confinement confined in the
county or regional jail for not more than one year, or both fined
and confined.
(b) Any person violating any provision of subsection (a) of this section, shall for the second or any subsequent offense
under this section, be is guilty of a felony and, upon conviction
thereof, shall be punished by a fine of fined not less than one
hundred dollars nor more than one thousand dollars, or by
imprisonment imprisoned in the state penitentiary a state
correctional facility for not less than one year nor more than
five years, or both fined and imprisoned, or, in the discretion
of the court, shall be punished by a fine of fined not less than
one hundred dollars nor more than one thousand dollars and by
confinement confined in the county or regional jail for not more
than one year.
(c) Notwithstanding any provision of this section to the
contrary, any person violating the provisions of subsection (a)
of this section whose violation of the subsection results in
another suffering serious bodily injury shall be is guilty of a
felony and, upon conviction thereof, shall be confined in a
correctional facility for not less than one nor more than five
years or fined not more than ten thousand dollars, or both
confined and fined. Each such injury covered by a violation of
subsection (a) of this section shall constitute constitutes a separate offense.
(d) Any person who violates the provisions of subsection (a)
of this section and whose violation involves false information
concerning the presence of a bomb or other explosive device at a
school, day care center or other educational institution, whether
public or private, is guilty of a felony and, upon conviction
thereof, shall be fined not less than one hundred dollars nor
more than ten thousand dollars, or imprisoned in a state
correctional facility for not less than one year nor more than
five years, or both fined and imprisoned, except that a minor
convicted pursuant to this section shall be placed in an
appropriate juvenile correction facility.
NOTE: The purpose of this bill is to make reporting of a
false bomb threat at a school or day care center a felony offense
with a maximum fine of $10,000. It requires that juveniles
accused of making a bomb threat at a school be tried as adults,
and permits the court, at its discretion, to hold parents liable
for damages in an amount up to $10,000, resulting from a minor
child's reporting of false information concerning a bomb at a
school.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.