H. B. 2451

         (By Delegate Smith)

         [Introduced January 13, 2011; referred to the

         Committee on the Judiciary.]

A BILL to amend and reenact §61-11A-2 of the Code of West Virginia, 1931, as amended, relating to victim impact statements by members of a deceased victim’s immediate family in matters involving misdemeanors when death results during the commission of a crime.

Be it enacted by the Legislature of West Virginia:

    That §61-11A-2 of the Code of West Virginia, 1931, as amended, be amended and reenacted to read as follows:

ARTICLE 11A. VICTIM PROTECTION ACT OF 1984.

§61-11A-2. Testimony of crime victim at sentencing hearing.

    (a) For the purposes of this section, "victim" means a person who is a victim of a felony or misdemeanor if death occurs during the commission of a crime, the fiduciary of a deceased victim's estate or a member of a deceased victim's immediate family who are known to the prosecutor.

    (b) Prior to the imposition of sentence upon any defendant who has been found guilty of a felony, or has pleaded guilty or nolo contendere to any felony or to a misdemeanor if death occurs during the commission of a crime, the court shall permit the victim of the crime to appear before the court for the purpose of making to make an oral statement for the record if the victim notifies the court of his or her desire to make such a statement after receiving notification provided in subsection (c) of this section. If the victim fails to so notify the court, such the failure shall constitute is a waiver of the right to make an oral statement. In lieu of such the appearance and oral statement, the victim may submit a written statement to the court or to the probation officer in charge of the case. Such The probation officer shall forthwith file any such the statement delivered to his or her office with the sentencing court and the statement shall must be made a part of the record at the sentencing hearing. Any such The statement, whether oral or written, shall must relate solely to the facts of the case and the extent of any injuries, financial losses and loss of earnings directly resulting from the crime for which the defendant is being sentenced.

    (c) Within a reasonable time prior to the imposition of sentence upon such the defendant, the prosecuting attorney or assistant prosecuting attorney in charge of the case shall make reasonable efforts, in writing, to advise the person who was the victim of such the crime, or in the case of a minor, the parent or guardian of such a minor who was the victim of a crime, or the fiduciary of his the victim’s estate if he be then the victim is deceased and the immediate family members of the victim if the victim is deceased and if their whereabouts are known to the prosecutor or assistant prosecutor. The writing will provide of the date, time and place of the original sentencing hearing and of the victim’s right to submit a written or oral statement to the sentencing court. as hereinabove provided.

    (d) The oral or written statement given or submitted by any a victim in accordance with the provisions of this section shall be is in addition to and not in lieu of the victim impact statement required by the provisions of section three of this article.

    NOTE: The purpose of this bill is to preserve to members of a deceased victim’s immediate family the opportunity to present an impact statement to a court in misdemeanor matters when death occurs during the commission of a crime.

    Strike throughs indicate language that would be stricken from the present law and underscoring indicates new language that would be added.