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WEST virginia legislature
2023 regular session
Committee Substitute
for
Senate Bill 633
By Senators Woodrum, Trump, Deeds, Caputo, Woelfel, and Rucker
[Originating in the Committee on the Judiciary; reported on February 25, 2023]
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 compliance with the magistrate court criminal rules; requiring prompt court appearances for persons detained on capiases or warrants for failure to appear; providing procedures for issuing bench warrants and capiases for nonappearance at scheduled court hearings or other proceeding; allowing a grace period after a failure to appear to allow certain defendants to appear except in defined circumstances; providing procedures following execution of bench warrants for nonappearance; and requiring courts to ensure that all inactive warrants and capiases for failure to appear are removed from law-enforcement databases.
Be it enacted by the Legislature of West Virginia:
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 of the county having jurisdiction of the offense for preliminary examination or trial. 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 of the county wherein the examination or trial is to be held, there to be dealt with as provided by law.
In all cases where a person is arrested in a county other than where the indictment or charge is pending, an arraignment shall be held pursuant to the Rules of Criminal Procedure for Magistrate Courts in West Virginia. If the person remains incarcerated after the arraignment, he or she shall be transported to the charging county within three days of arrest.
(a) Any person, who, having been released upon his or her personal recognizance pursuant to §62-1-1a of this code 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 released in accordance with this article fails to appear at a scheduled court appearance, the court may issue a capias or bench warrant for failure to appear if it determines that the defendant was provided effective notice of the court appearance by the court;
(g) For the purposes of this subsection, "effective notice of the court appearance" means:
(1) The notice was transmitted to the person no fewer than 10 days prior to the scheduled 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 is of record, 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 or otherwise transmitted to the address the person provided to the court.
(h) For purposes of capiases for failure to appear after indictment, newspaper publication alone does not constitute effective notice.
(i) Notwithstanding the provisions of subsections (a) through (d) of this section, where the record does not reflect that the person failing to appear received effective notice to appear from the court or where he or she has no documented history of failure to appear, a court, absent good cause shown, may not issue a capias until no fewer than two business days have elapsed since the failure to appear. If the defendant voluntarily appears within two business days, he or she is not subject to prosecution under this section.
(j) Nothing in subsection (f) of this section may be construed to limit a court’s ability to issue a capias upon credible information of danger to a person or the community, new criminal conduct or a bail violation other than failure to appear.
(k) Upon the arrest of a defendant pursuant to a capias in the county in which the indictment or charge is pending, a hearing pursuant to §62-1C-1a of this code shall be scheduled and held within three business days of the arrest.
(l) Upon the appearance in the county in which the indictment or charge is pending of a defendant against whom a capias has been issued the court shall provide written notice to the sheriff for his or her dissemination to all appropriate law-enforcement agencies, that the warrant or capias is no longer active and order it to be immediately 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 a defendant is arrested and held under a capias for failure to appear in the county wherein the charge or charges is pending, and he or she is entitled to admission to bail, an initial appearance shall be held as soon as practicable, or within three business days whichever is sooner, and bail shall be considered pursuant to §62-1C-1a of this code.
(f) Upon the appearance of a defendant upon an indictment or complaint upon which a warrant or capias has been issued, the court shall provide written notice to the sheriff for his or her dissemination to all appropriate law-enforcement agencies that the warrant or capias is no longer active and order that it be immediately removed from all databases.
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