H. B. 4483
(By Delegates Fragale, Iaquinta, Miley,
Cann and Stalnaker)
[Introduced February 11, 2008; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact §62-12-26 of the Code of West Virginia,
1931, as amended, relating to prohibiting certain sex
offenders from loitering within one thousand feet of a school
or child care facility, school bus stop, or other child safety
zone.
Be it enacted by the Legislature of West Virginia:
That §62-12-26 of the Code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
ARTICLE 12. PROBATION AND PAROLE.
§62-12-26. Extended supervision for certain sex offenders;
sentencing; conditions; supervision provisions;
supervision fee.
(a) Notwithstanding any other provision of this code to the
contrary, any defendant convicted after the effective date of this
section of a violation of section twelve, article eight, chapter
sixty-one of this code or a felony violation of the provisions of
article eight-b, eight-c or eight-d of said chapter shall, as part
of the sentence imposed at final disposition, be required to serve, in addition to any other penalty or condition imposed by the court,
a period of supervised release of up to fifty years:
Provided,
That the period of supervised release imposed by the court pursuant
to this section for a defendant convicted after the effective date
of this section as amended and reenacted during the first
extraordinary session of the Legislature, two thousand six, of a
violation of sections three or seven, article eight-b, chapter
sixty-one of this code and sentenced pursuant to section nine-a,
article eight-b, chapter sixty-one of this code, shall be no less
than ten years:
Provided, however, That a defendant designated
after the effective date of this section as amended and reenacted
during the first extraordinary session of the Legislature, two
thousand six, as a sexually violent predator pursuant to the
provisions of section two-a, article twelve, chapter fifteen of
this code shall be subject, in addition to any other penalty or
condition imposed by the court, to supervised release for life
:
Provided further, That, pursuant to the provisions of subsection
(g) of this section, a court may modify, terminate or revoke any
term of supervised release imposed pursuant to subsection (a) of
this section.
(b) Any person required to be on supervised release for a
minimum term of ten years or for life pursuant to the provisos of
subsection (a) also shall be further prohibited from:
(1) Establishing a residence or accepting employment within
one thousand feet of a school or child care facility or within one
thousand feet of the residence of a victim or victims of any sexually violent offenses for which the person was convicted;
(2) Loitering within one thousand feet of a school or child
care facility or school bus stop, or other child safety zone such
as a public park, playground, swimming or wading pool or any other
amusement area;
(2) (3) Establishing a residence or any other living
accommodation in a household in which a child under sixteen resides
if the person has been convicted of a sexually violent offense
against a child, unless the person is one of the following:
(i) The child's parent;
(ii) The child's grandparent; or
(iii) The child's stepparent and the person was the stepparent
of the child prior to being convicted of a sexually violent
offense, the person's parental rights to any children in the home
have not been terminated, the child is not a victim of a sexually
violent offense perpetrated by the person, and the court determines
that the person is not likely to cause harm to the child or
children with whom such person will reside:
Provided, That nothing
in this subsection shall preclude a court from imposing residency
or employment restrictions as a condition of supervised release on
defendants other than those subject to the provision of this
subsection.
(c) The period of supervised release imposed by the provisions
of this section shall begin upon the expiration of any period of
probation, the expiration of any sentence of incarceration or the
expiration of any period of parole supervision imposed or required of the person so convicted, whichever expires later.
(d) Any person sentenced to a period of supervised release
pursuant to the provisions of this section shall be supervised by
the probation office of the sentencing court or by the community
corrections program established in said circuit unless jurisdiction
is transferred elsewhere by order of the sentencing court.
(e) A defendant sentenced to a period of supervised release
shall be subject to any or all of the conditions applicable to a
person placed upon probation pursuant to the provisions of section
nine, article twelve, chapter sixty-one of this code:
Provided,
That any defendant sentenced to a period of supervised release
pursuant to this section shall be required to participate in
appropriate offender treatment programs or counseling during the
period of supervised release unless the court deems such to no
longer be appropriate or necessary and makes express findings in
support thereof.
Within ninety days of the effective date of this section as
amended and reenacted during the first extraordinary session of the
Legislature, two thousand six, the Secretary of the Department of
Health and Human Resources shall propose rules and emergency rules
for legislative approval in accordance with the provisions of
article three, chapter twenty-nine-a of this code establishing
qualifications for sex offender treatment programs and counselors
based on accepted treatment protocols among licensed mental health
professionals.
(f) The sentencing court may, based upon defendant's ability to pay, impose a supervision fee to offset the cost of supervision.
Said fee shall not exceed fifty dollars per month. Said fee may be
modified periodically based upon the defendant's ability to pay.
(g)
Modification of conditions or revocation. -- The court
may:
(1) Terminate a term of supervised release and discharge the
defendant released at any time after the expiration of two years of
supervised release, pursuant to the provisions of the West Virginia
Rules of Criminal Procedure relating to the modification of
probation, if it is satisfied that such action is warranted by the
conduct of the defendant released and the interests of justice;
(2) Extend a period of supervised release if less than the
maximum authorized period was previously imposed or modify, reduce
or enlarge the conditions of supervised release, at any time prior
to the expiration or termination of the term of supervised release,
consistent with the provisions of the West Virginia Rules of
Criminal Procedure relating to the modification of probation and
the provisions applicable to the initial setting of the terms and
conditions of post-release supervision;
(3) Revoke a term of supervised release and require the
defendant to serve in prison all or part of the term of supervised
release without credit for time previously served on supervised
release if the court, pursuant to the West Virginia Rules of
Criminal Procedure applicable to revocation of probation, finds by
clear and convincing evidence that the defendant violated a
condition of supervised release, except that a defendant whose term is revoked under this subdivision may not be required to serve more
than the period of supervised release;
(4) Order the defendant to remain at his or her place of
residence during nonworking hours and, if the court so directs, to
have compliance monitored by telephone or electronic signaling
devices, except that an order under this paragraph may be imposed
only as an alternative to incarceration.
(h)
Written statement of conditions. -- The court shall direct
that the probation officer provide the defendant with a written
statement that sets forth all the conditions to which the term of
supervised release is subject and that it is sufficiently clear and
specific to serve as a guide for the defendant's conduct and for
such supervision as is required.
(i)
Supervised release following revocation. -- When a term of
supervised release is revoked and the defendant is required to
serve a term of imprisonment that is less than the maximum term of
imprisonment authorized under subsection (a) of this section, the
court may include a requirement that the defendant be placed on a
term of supervised release after imprisonment. The length of such
term of supervised release shall not exceed the term of supervised
release authorized by this section less any term of imprisonment
that was imposed upon revocation of supervised release.
(j)
Delayed revocation. -- The power of the court to revoke a
term of supervised release for violation of a condition of
supervised release and to order the defendant to serve a term of
imprisonment and, subject to the limitations in subsection (h) of this section, a further term of supervised release extends beyond
the expiration of the term of adjudication of matters arising
before its expiration if, before its expiration, a warrant or
summons has been issued on the basis of an allegation of such a
violation.
NOTE: The purpose of this bill is to prohibit certain sex
offenders from loitering within one thousand feet of a school or
child care facility, school bus stop, or other child safety zone.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.