COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 714
(By Senator Chafin)
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[Originating in the Committee on the Judiciary;
reported March 27, 2009.]
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A BILL to amend and reenact §62-11A-1a of the Code of West
Virginia, 1931, as amended, relating to sentencing
alternatives; and removing authority to probation officers to
administer alternative sentencing programs and granting
Community Corrections Boards such authority.
Be it enacted by the Legislature of West Virginia:
That §62-11A-1a of the Code of West Virginia, 1931, as
amended, be amended and reenacted to read as follows:
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 a state
correctional facility, 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 are to 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 is to be
credited as one day of the sentence imposed. Regarding any portion
of the sentence designated as a fine, the fine is to 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;
or
(4) A day-reporting center program if the program has been
implemented in the sentencing court's jurisdiction or in the area where the offender resides. For purposes of this subdivision,
"day-reporting center" means a court-operated or court-approved
facility where persons ordered to serve a sentence in this type of
facility are required to report under the terms and conditions set
by the court for purposes which include, but are not limited to,
counseling, employment training, alcohol or drug testing or other
medical testing.
(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 remain under the administrative custody
and supervision of the
court's probation officers Community
Corrections Board or the county sheriff. Persons sentenced by a
magistrate 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:
Provided, That the judge or magistrate considers the
person's ability to pay the costs.
(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 a state correctional
facility:
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 may require the convicted person to perform duties which
would be considered detrimental to the convicted person's health as
attested by a physician.
(g) No provision of this section may be construed to limit a
circuit judge or magistrate's ability to impose a period of
supervision or participation in a community corrections program
created pursuant to article eleven-c, chapter sixty-two of this
code.