ENROLLED
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 105
(Senators Jackson, Kessler and Sharpe, original sponsors)
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[Passed March 14, 1998; in effect ninety days from passage.]
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AN ACT to amend and reenact section sixteen, article four,
chapter sixty-two of the code of West Virginia, one thousand
nine hundred thirty-one, as amended; and to amend and
reenact section one-a, article eleven-a of said chapter, all
relating to community service being credited against
criminal fine or confinement; limitations; provisions for
punishing willful failure to perform community service;
approval of entities for which work may be performed; and
standards of proof.
Be it enacted by the Legislature of West Virginia:
That section sixteen, article four, chapter sixty-two of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted; and that section one-a,
article eleven-a of said chapter be amended and reenacted, all to
read as follows:
ARTICLE 4. RECOVERY OF FINES IN CRIMINAL CASES.
§62-4-16. Community service work may be substituted in lieu of a
fine in municipal court.
(a) Notwithstanding any provision of this code to the
contrary, a municipal judge may substitute in lieu of the
imposition of a sentence of incarceration or imposition of a
fine, substitute community service work for such incarceration or
fine. Where community service work is ordered as a substitute on
a sentence of incarceration an eight hour work day shall
extinguish one day of any sentence of incarceration. The minimum
wage established by the prevailing federal minimum wage in effect
at the time of sentencing is imposed shall be used to compute the
amount of community service work necessary to extinguish the
fine. In the discretion of the court, the sentence credits may
run concurrently or consecutively.
(b) Any community service ordered pursuant to the provisions
of this section shall be performed for government entities or
charitable or nonprofit entities and be supervised by the chief
of police of the municipality or his or her designee.
(c) Persons sentenced under the provisions of this section
remain under the jurisdiction of the municipal court. The court
may withdraw the community service sentence at any time by order
entered with or without notice and order a person previously
sentenced to community service to serve the term of incarceration
or to pay the fine available to the court upon the person's
conviction:
Provided, That any community service work performed before the community service sentence is withdrawn shall be
credited against any term of incarceration or fine imposed.
ARTICLE 11A. RELEASE FOR WORK AND OTHER PURPOSES.
§62-11A-1a. Other sentencing alternatives.
(a) Any person who has been convicted in a circuit court or in
a magistrate court under any criminal provision of this code of
a misdemeanor or felony, which is punishable by imposition of a
fine or confinement in the county or regional jail or the state
penitentiary, or both fine and confinement, may, in the
discretion of the sentencing judge or magistrate, as an
alternative to the sentence imposed by statute for the crime, be
sentenced under one of the following programs:
(1) The weekend jail program under which persons would be
required to spend weekends or other days normally off from work
in jail;
(2) The work program under which sentenced persons would be
required to spend the first two or more days of their sentence in
jail and then, in the discretion of the court, would be assigned
to a county agency to perform labor within the jail, or in and
upon the buildings, grounds, institutions, bridges, roads,
including orphaned roads used by the general public and public
works within the county. Eight hours of labor shall be credited
as one day of the sentence imposed. Persons sentenced under this
program may be required to provide their own transportation to
and from the work site, lunch and work clothes; or
(3) The community service program under which persons
sentenced would spend no time in jail but would be sentenced to
a number of hours or days of community service work with
government entities or charitable or nonprofit entities approved
by the circuit court. Regarding any portion of the sentence
designated as confinement, eight hours of community service work
shall be credited as one day of the sentence imposed. Regarding
any portion of the sentence designated as a fine, the fine shall
be credited at an hourly rate equal to the prevailing federal
minimum wage at the time the sentence was imposed. In the
discretion of the court, the sentence credits may run
concurrently or consecutively. Persons sentenced under this
program may be required to provide their own transportation to
and from the work site, lunch and work clothes.
(b) In no event may the duration of the alternate sentence
exceed the maximum period of incarceration otherwise allowed.
(c) In imposing a sentence under the provisions of this
section, the court shall first make the following findings of
fact and incorporate them into the court's sentencing order:
(1) The person sentenced was not convicted of an offense for
which a mandatory period of confinement is imposed by statute;
(2) In circuit court cases, that the person sentenced is not
a habitual criminal within the meaning of sections eighteen and
nineteen, article eleven, chapter sixty-one of this code;
(3) In circuit court cases, that the offense underlying the sentence is not a felony offense for which violence or the threat
of violence to the person is an element of the offense;
(4) In circuit court cases, that adequate facilities for the
administration and supervision of alternative sentencing programs
are available through the court's probation officers or the
county sheriff or, in magistrate court cases, that adequate
facilities for the administration and supervision of alternative
sentencing programs are available through the county sheriff; and
(5) That an alternative sentence under provisions of this
article will best serve the interests of justice.
(d) Persons sentenced by the circuit court under the
provisions of this article shall remain under the administrative
custody and supervision of the court's probation officers or the
county sheriff. Persons sentenced by a magistrate shall remain
under the administrative custody and supervision of the county
sheriff.
(e) Persons sentenced under the provisions of this section may
be required to pay the costs of their incarceration, including
meal costs, at the discretion of the court.
(f) Persons sentenced under the provisions of this section
remain under the jurisdiction of the court. The court may
withdraw any alternative sentence at any time by order entered
with or without notice and require that the remainder of the
sentence be served in the county jail, regional jail or
penitentiary:
Provided, That no alternative sentence directed by the sentencing judge or magistrate or administered under the
supervision of the sheriff, his or her deputies, a jailer or a
guard, shall require the convicted person to perform duties which
would be considered detrimental to the convicted person's health
as attested by a physician.