FISCAL
NOTE
WEST virginia Legislature
2017 regular session
By
[
to the Committee on the Judiciary
A BILL to repeal §61-3-11
of the Code of West Virginia, 1931, as amended; to amend said code by adding
thereto a new section, designated §61-2-31; and to amend and reenact §61-3-12
of said code, all relating to replacing the present crime of burglary with the
crime of home invasion; providing criminal offenses of home invasion in the
first, second, third and fourth degrees; and prescribing penalties.
Be it enacted by the
Legislature of West Virginia:
That §61-3-11 of the
Code of West Virginia, 1931, as amended, be repealed; that said code be amended
by adding thereto a new section, designated §61-2-31; and that §61-3-12 of said
code be amended and reenacted, all to read as follows:
ARTICLE 2. CRIMES AGAINST THE PERSON.
§61-2-31. Home
invasion; degrees; penalties; definitions.
(a) As used in this section the following terms are defined
as:
(1) "Enters or remains unlawfully" means when a person who enters or
remains upon the premises when the premises, at the time of the entry or
remaining, is not open to the public and when the individual is not otherwise
licensed, privileged or has permission to enter or remain on the premises.
(2) "Dangerous instrument" means any instrument, article, or
substance which, under the circumstances in which it is used or attempted to
threatened to be used, is capable of causing death or serious physical injury,
including a vehicle and a dog that has been commanded to attack.
(3) "Deadly weapon" has the same meaning as provided
in section two, article seven, chapter sixty-one of this code.
(4) "Dwelling" includes, but is not limited
to, a mobile home, house trailer, modular home, factory-built home or
self-propelled motor home, used as a dwelling regularly or only from time to
time, an occupied outhouse adjoining the dwelling, or any other nonmotive
vehicle primarily designed for human habitation and occupancy and used as a
dwelling regularly or only from time to time.
(b) (1) Home invasion in the first degree. -- It
is unlawful for an individual to enter or remain unlawfully in a dwelling, or
an outhouse adjoining or occupied, or another, with the intent to commit a
crime therein and who is either:
(A) Armed with explosives, a deadly weapon or a
dangerous instrument; or
(B) In the course of committing the offense,
intentionally, knowingly, or recklessly uses explosives, a deadly weapon or a
dangerous instrument that causes physical injury, serious physical injury or
death to a person lawfully present in the dwelling.
(2) Anyone found to have violated subdivision (1) of
this subsection is guilty of a felony and, upon conviction, shall be fined not
more than $20,000 and imprisoned for twenty-five years to life without mercy.
(3) Notwithstanding any other provision of this code to
the contrary, an individual sentenced pursuant to this subsection is not
eligible for any reduction in the individual's term of sentence, nor is the
individual eligible for any type of alternative sentencing.
(c) (1) Home invasion in the second degree. --
It is unlawful for a person to enter or remain unlawfully in a dwelling with
the intent to commit a crime, and to use, or threaten to use, physical force
against a person lawfully present in the dwelling.
(2) Anyone found to have violated subdivision (1) of
this subsection is guilty of a felony and, upon conviction, shall be fined not
more than $15,000 and imprisoned for a term of twenty years.
(3) Notwithstanding any other provision of this code to
the contrary, an individual sentenced pursuant to this subsection is not
eligible for any reduction in the individual's term of sentence, and is not
eligible for any type of alternative sentencing.
(d) (1) Home invasion in the third degree. -- It
is unlawful for a person to enter or remain unlawfully in a dwelling with the
intent to commit a crime when another person is lawfully present in the
building.
(2) Anyone found to have violated subdivision (1) of
this subsection is guilty of a felony and, upon conviction, shall be imprisoned
for ten years.
(3) Notwithstanding any other provision of this code,
an individual sentenced pursuant to this subsection is not eligible for any
reduction in the individual's term of sentence, and is not eligible for any type of
alternative sentencing.
(e) (1) Home invasion in the fourth degree. --
It is unlawful for a person to enter or remain unlawfully in a dwelling with
the intent to commit a crime in it.
(2) Anyone found to have violated subdivision (1) of
this subsection is guilty of a felony and, upon conviction, shall be fined not
more than $5,000, imprisoned for up to five years, or both fined and
imprisoned.
ARTICLE
3. CRIMES AGAINST PROPERTY.
§61-3-12. Entry of building other than dwelling; entry
of railroad, traction or motorcar, steamboat or other vessel; penalties; counts
in indictment.
If any A person shall who, at any time, break
and enter, or shall enter breaks and enters or enters without
breaking, any office, shop, underground coal mine, storehouse, warehouse,
banking house or any house or building, other than a dwelling house or
outhouse adjoining thereto or occupied therewith, or any railroad
or traction car, propelled by steam, electricity or otherwise, or any steamboat
or other boat or vessel, within the jurisdiction of any county in this state,
with intent to commit a felony or any larceny, he or she shall be deemed
is guilty of a felony and, upon conviction, shall be confined imprisoned
in a state correctional facility not less than one nor more than ten
years. And if any A person
shall who, at any time, break and enter, or shall enter breaks
and enters or enters without breaking, any automobile, motorcar or bus,
with like intent, within the jurisdiction of any county in this state, he shall
be or she is guilty of a misdemeanor and, upon conviction, shall be
confined in jail not less than two nor more than twelve months and be fined not
exceeding $100.
An indictment for burglary
home invasion may contain one or more counts for breaking and entering,
or for entering without breaking, the house or building mentioned in the count
for burglary home invasion under the provisions of this and the
preceding this section as well as sections thirty-one through
thirty-four, article two of this chapter.
NOTE: The purpose of this bill is
to replace the present crime of burglary with the crime of home invasion. This
bill provides for the criminal offenses of home invasion in the first, second,
third and fourth degrees. The bill
prescribes penalties.
Strike-throughs indicate language
that would be stricken from a heading or the present law and underscoring
indicates new language that would be added.