WEST virginia legislature
2019 regular session
House Bill 2109
By Delegate Canestraro, Hollen and Steele
[Introduced January 9, 2019; Referred to the Committee on the Judiciary then Finance]
A BILL to amend and reenact §62-12-10 of the Code of West Virginia, 1931, as amended, relating to extending the maximum period of confinement a judge may impose for certain, first-time probationary violations from 60 days to six months; and providing judges greater sentencing discretion for certain, subsequent violations of probation.
Be it enacted by the Legislature of West Virginia:
ARTICLE 12. PROBATION AND PAROLE.
§62-12-10. Violation of probation.
(a) If at any time during the period of probation there shall be reasonable cause to believe that the probationer has violated any of the conditions of his or her probation, the probation officer may arrest him or her with or without an order or warrant, or the court which placed him or her on probation, or the judge thereof in vacation, may issue an order for his or her arrest, whereupon he or she shall be brought before the court, or the judge thereof in vacation, for a prompt and summary hearing.
(1) If the court or judge finds reasonable cause exists to believe that the probationer:
(A) Absconded supervision;
(B) Engaged in new criminal conduct other than a minor traffic violation or simple possession of a controlled substance; or
(C) Violated a special condition of probation designed either to protect the public or a victim; the court or judge may revoke the suspension of imposition or execution of sentence, impose sentence if none has been imposed and order that sentence be executed.
(2) If the judge finds that
reasonable cause exists to believe that the probationer violated any condition
of supervision other than the conditions of probation set forth in
§62-12-10(a)(1) of this code then, for the first violation, the judge
may impose a period of confinement up to sixty days or, for the
second violation six months. For subsequent violations, a period
of confinement up to one hundred twenty days. For the third violation the
judge may revoke the suspension of imposition or execution of sentence, impose
sentence if none has been imposed and order that sentence be executed, with
credit for time spent in confinement under this section.
(3) In computing the period for which the offender is to be confined, the time between his or her release on probation and his or her arrest may not be taken to be any part of the term of his or her sentence.
(b) A probationer confined for a first or second violation pursuant to §62-12-10(a)(2) of this code may be confined in jail, and the costs of confining felony probationers shall be paid out of funds appropriated for the Division of Corrections. Whenever the court orders the incarceration of a probationer pursuant to the provisions of §62-12-10(a)(2) of this code, a circuit clerk shall provide a copy of the order of confinement within five days to the Commissioner of Corrections.
(c) If, despite a violation of the conditions of probation, the court or judge is of the opinion that the interests of justice do not require that the probationer serve his or her sentence or a period of confinement, the judge may, except when the violation was the commission of a felony, again release him or her on probation: Provided, That a judge may otherwise depart from the sentence limitations set forth in §62-12-10(a)(2) of this code upon making specific written findings of fact supporting the basis for the departure.
NOTE: The purpose of this bill is to extend the maximum period of confinement a judge may impose for certain, first-time probationary violations from 60 days to six months. The bill also provides judges greater sentencing discretion for certain, subsequent violations of probation.
Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.