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WEST VIRGINIA LEGISLATURE
2023 REGULAR SESSION
Introduced
Senate Bill 633
By Senators Woodrum, Trump, Deeds, Caputo, Woelfel, and Rucker
[Introduced February 15, 2023; referred
to the Committee on the Judiciary]
A BILL to amend and reenact §62-1-7 of the Code of West Virginia, 1931, as amended; to amend and reenact §62-1C-17b of said code; and to amend and reenact §62-2-17 of said code, all relating to failure to appear; requiring prompt appearances for persons detained on capiases; providing procedures for issuing bench warrants for nonappearance at scheduled court hearings; allowing a grace period after a failure to appear to allow a defendant to appear; providing procedures following execution of bench warrants for nonappearance; and requiring courts to ensure that inactive capiases are removed from law-enforcement databases.
Be it enacted by the Legislature of West Virginia:
(a) If the warrant issued, or if the offense is alleged to have been committed, in a county other than the county of arrest, all papers in the proceeding shall be promptly transmitted to a justice magistrate or circuit court judge of the county having jurisdiction of the offense for preliminary examination or trial.
(b) If the defendant is unable to provide bail in the county of arrest, he or she shall be committed to the custody of an officer who shall take him or her without unnecessary delay before a justice magistrate or circuit court judge of the county wherein the examination or trial is to be held, there to be dealt with as provided by law.
(c) In all cases where a person is arrested and held under a capias and entitled to admission to bail, an initial appearance must be held within three business days and bail shall be set pursuant to §62-1C-1a of this code.
(a) Any person, who, having been released upon his or her personal recognizance pursuant to section one-a of this article or having been otherwise admitted to bail and released in accordance with this article, and who shall willfully and without just cause fail to appear as and when it may be required of him or her, shall be guilty of the offense as hereinafter prescribed, and, upon conviction thereof, shall be punished in the manner hereinafter provided.
(b) If any such person was admitted to bail or released after being arrested for, charged or convicted of a felony and, shall thereafter be convicted for a violation of the provisions of subsection (a) of this section, such persons shall be guilty of a felony and, shall be fined not more than $5,000 or imprisoned not less than one nor more than five years, or both such fine and imprisonment.
(c) If any such person was admitted to bail or released after being arrested for, charged or convicted of a misdemeanor and, shall thereafter be convicted for a violation of the provision of subsection (a) of this section, such persons shall be guilty of a misdemeanor and, shall be fined not more the $1,000 or confined in the county jail for not more than one year, or both such fine and confinement.
(d) If any such person was admitted to bail or released pending appearance as a material witness and shall thereafter fail to appear when and where it shall have been required of him or her, such persons shall be guilty of a misdemeanor and, upon conviction thereof, shall be fined not more the $1,000 or confined in the county jail not more than one year, or both such fine and confinement.
(e) Any penalty authorized by this section shall be in addition to any forfeiture authorized or mandated by this article or by any other provision of law.
(f) If any defendant admitted to bail and release in accordance with this article fails to appear at a scheduled court appearance, the court may issue a bench warrant for failure to appear if it determines:
(1) The defendant was provided effective notice of the court appearance by the court; and
(2) No just cause exists for nonappearance.
(g) For the purposes of this section, "effective notice of the court appearance" means:
(1) The date of the notice is no less than six days and no more than 30 days from the date of the court appearance;
(2) The notice plainly describes the date, time, and location of the court appearance;
(3) An explanation of the consequences for nonappearance;
(4) Where counsel has been appointed, the name and contact information of the counsel of record;
(5) The name, contact information, and address of the court with jurisdiction; and
(6) Proof that the notice was mailed to the address the person provided to the court.
(h) Absent good cause shown, a court may not issue a warrant until the passage of no less than two business days after the missed court appearance. If the defendant appears within two business days, the court may not issue a warrant based solely on the failure to appear and shall reschedule the court appearance for no less than six days and no more than 30 days in the future.
(i) Upon arrest for a bench warrant for failure to appear, the magistrate or judge who issued the bench warrant shall hold a hearing with counsel within three days and bail shall be set pursuant to §62-1C-1a of this code.
(j) Nothing in this section may be construed to limit a court's ability to issue a bench warrant upon credible evidence of a new criminal offense or credible evidence of a bail violation other than nonappearance.
(k) In any case in which a capias has been issued, the court, upon the appearance of the defendant, shall provide notice to law enforcement that the capias is no longer active and should be removed from all databases.
(a) An officer who, under a capias from a court, arrests a person accused of an offense other than murder in the first degree shall deliver the accused to such court, if sitting, and if such court is not sitting, the officer shall deliver the accused to a magistrate who may admit the accused to bail: Provided, That any such bail granted by a magistrate shall be conditioned upon the appearance by the accused before the court on the date provided in the capias for such appearance, or, if no such date is provided in the capias, then such bail shall be conditioned upon the appearance of the accused on the next day on which such court is sitting.
(b) No magistrate shall admit to bail any person arrested under an alias capias.
(c) Bail set by a magistrate may be made and posted before the magistrate court clerk and the recognizance and record thereof, together with any money received therefor, shall be forthwith delivered to the clerk of the circuit court.
(d) An officer who, under a capias from a court, arrests a person accused of an offense not bailable, or for which bail is not given, shall deliver the accused to such court, if sitting, or to the jailer thereof, who shall receive and imprison him or her.
(e) In all cases where an accused person is arrested and held under a capias and entitled to admission to bail, an initial appearance must be held within three business days and bail shall be set pursuant to §62-1C-1a of this code.
(f) Upon the appearance of a person charged by an indictment of complaint upon which a warrant or capias has been issued, the court shall provide notice to law enforcement that the warrant is no longer active and should be removed from all databases.
NOTE: The purpose of this bill relates to the failure to appear. It requires prompt appearances for persons detained on capiases; provides procedures for issuing bench warrants for nonappearance at scheduled court hearings; allows a grace period after a failure to appear to allow a defendant to appear; provides procedures following execution of bench warrants for nonappearance; and requires courts to ensure that inactive capiases are removed from law enforcement databases.
Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.
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