H. B. 2759
(By Mr. Speaker, Mr. Chambers and Delegates Rowe,
Martin and Manuel)
[Introduced March 27, 1993; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact section two, article twelve, chapter
sixty-two of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, relating to probation
eligibility; making a person convicted of a felony involving
the use of a dangerous weapon ineligible for probation; and
making technical corrections.
Be it enacted by the Legislature of West Virginia:
That section two, article twelve, chapter sixty-two of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted to read as follows:
ARTICLE 12. PROBATION AND PAROLE.
§62-12-2. Eligibility for probation.
(a) All persons who are found guilty of or plead guilty to
any felony, the maximum penalty for which is less than life
imprisonment, and all persons who are found guilty of or plead
guilty to any misdemeanor,
shall be are eligible for probation,
notwithstanding the provisions of sections eighteen and nineteen,article eleven, chapter sixty-one of this code.
(b)
Notwithstanding the provisions of subsection (a) of this
section,
to the contrary notwithstanding any person who commits
or attempts to commit a felony with the use, presentment or
brandishing of a firearm
or other dangerous weapon defined in
section two, article seven, chapter sixty-one of this code shall
be is ineligible for probation. Nothing in this section
shall
apply applies to an accessory before the fact or a principal in
the second degree who has been convicted as if he or she were a
principal in the first degree if, in the commission of or in the
attempted commission of the felony, only the principal in the
first degree used, presented or brandished a firearm
or other
dangerous weapon.
(c)(1) The existence of any fact which would make any person
ineligible for probation under subsection (b) of this section
because of the commission or attempted commission of a felony
with the use, presentment or brandishing of a firearm
or other
dangerous weapon shall not be is not applicable unless
such that
fact is clearly stated and included in the indictment or
presentment by which
such the person is charged and is either (i)
found by the court upon a plea of guilty or nolo contendere, or
(ii) found by the jury, if the matter
be is tried before a jury,
upon submitting to
such the jury a special interrogatory for
such
that purpose or (iii) found by the court, if the matter
be is
tried by the court, without a jury.
(2) The amendments to this subsection adopted in the yearone thousand nine hundred eighty-one:
(A)
Shall Apply to all applicable offenses occurring on or
after the first day of August of that year;
(B)
Shall Apply with respect to the contents of any
indictment or presentment returned on or after the first day of
August of that year irrespective of when the offense occurred;
(C)
Shall Apply with respect to the submission of a special
interrogatory to the jury and the finding to be made thereon in
any case submitted to
such the jury on or after the first day of
August of that year or to the requisite findings of the court
upon a plea of guilty or in any case tried without a jury:
Provided, That the state shall give notice in writing of its
intent to seek
such a finding by the jury or court, as the case
may be, which notice shall state with particularity the grounds
upon which
such the finding
shall be is sought as fully as
such
grounds are otherwise required to be stated in an indictment,
unless the grounds therefor are alleged in the indictment or
presentment upon which the matter is being tried;
(D)
Shall Do not apply with respect to cases not affected by
such amendment and in
such those cases the prior provisions of
this section shall apply and be construed without reference to
such the amendment; and
Insofar as
such amendments relate to mandatory sentences
without probation, all
such matters requiring
such sentence shall
be proved beyond a reasonable doubt in all cases tried by the
jury or the court.
(d) For the purpose of this section, the term "firearm"
shall mean means any instrument which will, or is designed to, or
may readily be converted to, expel a projectile by the action of
an explosive, gunpowder, or any other similar means.
(e) In the case of any person who has been found guilty of,
or pleaded guilty to, a felony or misdemeanor under the
provisions of section twelve,
or twenty-four article eight of
chapter sixty-one, or under the provisions of article
eight-c or
eight-b,
eight-c or eight-d, both all of chapter sixty-one
all of
this code,
such the person
shall is only
be eligible for
probation after undergoing a physical, mental and psychiatric
study and diagnosis which shall include an on-going treatment
plan requiring active participation in sexual abuse counseling at
a mental health facility or through some other approved program:
Provided, That nothing disclosed by the person during such study
or diagnosis
shall may be made available to any law enforcement
agency, or other party without that person's consent, or
admissible in any court of this state, unless
such the
information disclosed
shall indicate indicates the intention or
plans of the probationer to do harm to any person, animal,
institution, or property, in which case
such the information may
be released only to
such those persons
as might be who are
necessary for protection of the
said person, animal, institution,
or property.
NOTE: The purpose of this bill is to make a person
convicted of a felony involving the use of a dangerous weapon
ineligible for probation.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.
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