ENROLLED
COMMITTEE SUBSTITUTE
FOR
H. B. 4296
(By Delegates Canterbury, Campbell and Crosier)
[Passed March 8, 2008; in effect ninety days from passage.]
AN ACT to amend and reenact §53-4A-7 of the Code of West Virginia,
1931, as amended, relating to the rights of crime victims;
requiring that prosecuting attorneys provide notice to victims
of crimes of violence or next of kin in homicides when a
habeas corpus proceeding vacates a conviction or sentence and
the victim or next of kin previously provides names and
addresses.
Be it enacted by the Legislature of West Virginia:
That §53-4A-7 of the Code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
ARTICLE 4A. POST-CONVICTION HABEAS CORPUS.
§53-4A-7. Denial of relief; hearings; evidence; record; judgment.
(a) If the petition, affidavits, exhibits, records and other
documentary evidence attached thereto, or the return or other
pleadings, or the record in the proceedings which resulted in the
conviction and sentence, or the record or records in a proceeding
or proceedings on a prior petition or petitions filed under the
provisions of this article, or the record or records in any other proceeding or proceedings instituted by the petitioner to secure
relief from his conviction or sentence, show to the satisfaction of
the court that the petitioner is entitled to no relief, or that the
contention or contentions and grounds (in fact or law) advanced
have been previously and finally adjudicated or waived, the court
shall enter an order denying the relief sought. If it appears to
the court from said petition, affidavits, exhibits, records and
other documentary evidence attached thereto, or the return or other
pleadings, or any such record or records referred to above, that
there is probable cause to believe that the petitioner may be
entitled to some relief and that the contention or contentions and
grounds (in fact or law) advanced have not been previously and
finally adjudicated or waived, the court shall promptly hold a
hearing and/or take evidence on the contention or contentions and
grounds (in fact or law) advanced, and the court shall pass upon
all issues of fact without a jury. The court may also provide for
one or more hearings to be held and/or evidence to be taken in any
other county or counties in the state.
(b) A record of all proceedings under this article and all
hearings and evidence shall be made and kept. The evidentiary
depositions of witnesses taken by either the petitioner or the
state, on reasonable notice to the other, may be read as evidence.
The court may receive proof by proper oral testimony or other
proper evidence. All of the evidence shall be made a part of the
record. When a hearing is held and/or evidence is taken by a judge
of a circuit court or statutory court in vacation, a transcript of
the proceedings shall be signed by the judge and certified to the clerk of the court in which the judgment is to be rendered, and be
entered by him among the records of that court. A record of all
proceedings in the supreme court of appeals shall be entered among
the records of such court.
(c) When the court determines to deny or grant relief, as the
case may be, the court shall enter an appropriate order with
respect to the conviction or sentence in the former criminal
proceedings and such supplementary matters as are deemed necessary
and proper to the findings in the case, including, but not limited
to, remand, the vacating or setting aside of the plea, conviction
and sentence, rearraignment, retrial, custody, bail, discharge,
correction of sentence and resentencing, or other matters which may
be necessary and proper. In any order entered in accordance with
the provisions of this section, the court shall make specific
findings of fact and conclusions of law relating to each contention
or contentions and grounds (in fact or law) advanced, shall clearly
state the grounds upon which the matter was determined, and shall
state whether a federal and/or state right was presented and
decided. Any order entered in accordance with the provisions of
this section shall constitute a final judgment, and, unless
reversed, shall be conclusive.
(d) Notwithstanding any provision of law to the contrary,
whenever a conviction from a crime of violence is reversed or a
sentence of incarceration for such an offence is vacated pursuant
to the provisions of this article, the prosecuting attorney of the
county of prosecution shall, prior to a retrial or entering into
any plea negotiations or sentence negotiations to resolve the matter, notify the victim or if the offence was a homicide, the
next of kin of the victim, by United States mail sent to the last
known address of said person, if his or her name and address has
previously been provided to the prosecuting attorney.