H. B. 2756
(By Delegates Longstreth and Barker)
[Introduced February 23, 2009 ; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact §62-12-6 and §62-12-26 of the Code of
West Virginia, 1931, as amended, all relating to granting
probation officers the authority to arrest persons who violate
his or her conditions of supervised release; eliminating the
authority of probation officers to collect moneys; eliminating
the requirement that probation officers post bond; and
providing that an additional term of supervised release
extends beyond the expiration of the term of supervised
release for any period necessary for adjudication in regards
to delay revocations.
Be it enacted by the Legislature of West Virginia:
That §62-12-6 and §62-12-26 of the Code of West Virginia,
1931, as amended, be amended and reenacted, all to read as follows:
ARTICLE 12. PROBATION AND PAROLE.
§62-12-6. Powers and duties of probation officers.
(a) Each probation officer shall investigate all cases
referred to him or her for investigation by the court and shall
report in writing thereon He on each case. The probation officer
shall furnish to each person released on probation under his or her
supervision a written statement of the probationer's conditions of
his or her probation together with a copy of the rules and
regulations prescribed by the court for the supervision of its
probationers. He The probation officer shall keep himself stay
informed concerning the conduct and condition of those the
probationers under his or her supervision and shall report thereon
on the conduct and condition or each probationer in writing as
often as the court may require requires. He or she shall use all
practicable and suitable methods to aid and encourage them and to
bring about improvement in their the probationer to improve his or
her conduct and condition. He The probation officer shall keep
maintain detailed records of his or her work and shall keep
accurate and complete accounts of, and give receipts for, all money
collected from persons under his supervision and shall pay over the
money to such person as the court may designate. He shall give
bond with good security, to be approved by the court, in a penalty
of not less than one thousand nor more than three thousand dollars,
as the court may determine. He shall also perform such any other
duties as the court may require required by the court. He The
probation officer shall have authority, with or without an order or warrant, to arrest any probationer
or person on supervised release.
(b) Notwithstanding any provision of this code to the
contrary:
(1) Any probation officer appointed on or after July 1, 2002,
may carry handguns in the course of their his or her official
duties after meeting specialized qualifications established by the
Governor's Committee on Crime, Delinquency and Correction, which
qualifications shall include the successful completion of handgun
training, including a minimum of four hours' training in handgun
safety and comparable to the handgun training provided to
law-enforcement officers by the West Virginia State Police.
(2) Any person employed as a probation officer on June 30,
2002, is exempt from the licensure requirements set forth in
article seven, chapter sixty-one of this code until June 30, 2004,
while employed as a probation officer: Provided, That after June
30, 2004, such probation officers may only carry handguns in the
course of their official duties after meeting the specialized
qualifications set forth in subdivision (1) of this subsection.
(3) Nothing in this subsection shall be construed to include
probation officers within the meaning of law-enforcement officers
as defined in section one, article twenty-nine, chapter thirty of
this code.
§62-12-26. Extended supervision for certain sex offenders;
sentencing; conditions; supervision provisions; supervision fee.
(a) Notwithstanding any other provision of this code to the
contrary, any defendant convicted after the effective date of this
section of a violation of section twelve, article eight, chapter
sixty-one of this code or a felony violation of the provisions of
article eight-b, eight-c or eight-d of said chapter shall, as part
of the sentence imposed at final disposition, be required to serve,
in addition to any other penalty or condition imposed by the court,
a period of supervised release of up to fifty years:
Provided,
That the period of supervised release imposed by the court pursuant
to this section for a defendant convicted after the effective date
of this section as amended and reenacted during the first
extraordinary session of the Legislature, 2006, of a violation of
sections three or seven, article eight-b, chapter sixty-one of this
code and sentenced pursuant to section nine-a, article eight-b,
chapter sixty-one of this code, shall be no less than ten years:
Provided, however, That a defendant designated after the effective
date of this section as amended and reenacted during the first
extraordinary session of the Legislature, 2006, as a sexually
violent predator pursuant to the provisions of section two-a,
article twelve, chapter fifteen of this code shall be subject, in
addition to any other penalty or condition imposed by the court, to
supervised release for life:
Provided further, That, pursuant to
the provisions of subsection (g) of this section, a court may modify, terminate or revoke any term of supervised release imposed
pursuant to subsection (a) of this section.
(b) Any person required to be on supervised release for a
minimum term of ten years or for life pursuant to the provisos of
subsection (a) also shall be further prohibited from:
(1) Establishing a residence or accepting employment within
one thousand feet of a school or child care facility or within one
thousand feet of the residence of a victim or victims of any
sexually violent offenses for which the person was convicted;
(2) Establishing a residence or any other living accommodation
in a household in which a child under sixteen resides if the person
has been convicted of a sexually violent offense against a child,
unless the person is one of the following:
(i) The child's parent;
(ii) The child's grandparent; or
(iii) The child's stepparent and the person was the stepparent
of the child prior to being convicted of a sexually violent
offense, the person's parental rights to any children in the home
have not been terminated, the child is not a victim of a sexually
violent offense perpetrated by the person, and the court determines
that the person is not likely to cause harm to the child or
children with whom such person will reside:
Provided, That nothing
in this subsection shall preclude a court from imposing residency
or employment restrictions as a condition of supervised release on defendants other than those subject to the provision of this subsection.
(c) The period of supervised release imposed by the provisions
of this section shall begin upon the expiration of any period of
probation, the expiration of any sentence of incarceration or the
expiration of any period of parole supervision imposed or required
of the person so convicted, whichever expires later.
(d) Any person sentenced to a period of supervised release
pursuant to the provisions of this section shall be supervised by
the probation office of the sentencing court or by the community
corrections program established in said circuit unless jurisdiction
is transferred elsewhere by order of the sentencing court.
(e) A defendant sentenced to a period of supervised release
shall be subject to any or all of the conditions applicable to a
person placed upon probation pursuant to the provisions of section
nine, article twelve, chapter
sixty-one sixty-two of this code:
Provided, That any defendant sentenced to a period of supervised
release pursuant to this section shall be required to participate
in appropriate offender treatment programs or counseling during the
period of supervised release unless the court deems
such the
offender treatment programs or counseling to no longer be
appropriate or necessary and makes express findings in support
thereof.
Within ninety days of the effective date of this section as
amended and reenacted during the first extraordinary session of the Legislature, 2006, the Secretary of the Department of Health and
Human Resources shall propose rules and emergency rules for
legislative approval in accordance with the provisions of article
three, chapter twenty-nine-a of this code establishing
qualifications for sex offender treatment programs and counselors
based on accepted treatment protocols among licensed mental health
professionals.
(f) The sentencing court may, based upon defendant's ability
to pay, impose a supervision fee to offset the cost of supervision.
Said fee shall not exceed $50 per month. Said fee may be modified
periodically based upon the defendant's ability to pay.
(g)
Modification of conditions or revocation. -- The court
may:
(1) Terminate a term of supervised release and discharge the
defendant released at any time after the expiration of two years of
supervised release, pursuant to the provisions of the West Virginia
Rules of Criminal Procedure relating to the modification of
probation, if it is satisfied that such action is warranted by the
conduct of the defendant released and the interests of justice;
(2) Extend a period of supervised release if less than the
maximum authorized period was previously imposed or modify, reduce
or enlarge the conditions of supervised release, at any time prior
to the expiration or termination of the term of supervised release,
consistent with the provisions of the West Virginia Rules of Criminal Procedure relating to the modification of probation and
the provisions applicable to the initial setting of the terms and
conditions of post-release supervision;
(3) Revoke a term of supervised release and require the
defendant to serve in prison all or part of the term of supervised
release without credit for time previously served on supervised
release if the court, pursuant to the West Virginia Rules of
Criminal Procedure applicable to revocation of probation, finds by
clear and convincing evidence that the defendant violated a
condition of supervised release, except that a defendant whose term
is revoked under this subdivision may not be required to serve more
than the period of supervised release;
(4) Order the defendant to remain at his or her place of
residence during nonworking hours and, if the court so directs, to
have compliance monitored by telephone or electronic signaling
devices, except that an order under this paragraph may be imposed
only as an alternative to incarceration.
(h)
Written statement of conditions. -- The court shall direct
that the probation officer provide the defendant with a written
statement
at his her sentencing hearing that sets forth all the
conditions to which the term of supervised release is subject and
that it is sufficiently clear and specific to serve as a guide for
the defendant's conduct and for such supervision as is required.
(i)
Supervised release following revocation. -- When a term of supervised release is revoked and the defendant is required to
serve a term of imprisonment that is less than the maximum term of
imprisonment supervised release authorized under subsection (a) of
this section, the court may include a requirement that the
defendant be placed on a term of supervised release after
imprisonment. The length of such term of supervised release shall
not exceed the term of supervised release authorized by this
section less any term of imprisonment that was imposed upon
revocation of supervised release.
(j)
Delayed revocation. -- The power of the court to revoke a
term of supervised release for violation of a condition of
supervised release and to order the defendant to serve a term of
imprisonment and, subject to the limitations in subsection
(h) (i)
of this section, a further term of supervised release extends
beyond the expiration of the term of
supervised release for any
period necessary for the adjudication of matters arising before its
expiration if, before its expiration, a warrant or summons has been
issued on the basis of an allegation of such a violation.
NOTE: The purpose of this bill is to clarify that probation
officers have the authority to arrest both probationers and persons
on supervised release; eliminating the authority of probation
officers to collect moneys; eliminating the requirement that
probation officers post bond; and adding language from the federal
statute that was accidently omitted when the section was reenacted
by the Child Protection Act of 2006 regarding delayed revocation
and providing technical cleanup.
Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would
be added.