H. B. 2944
(By Delegate Rodighiero)
[Introduced March 4, 2009; referred to the
Committee on the Judiciary then Finance.]
A BILL to repeal §61-3-11 of the Code of West Virginia, 1931, as
amended; to amend said code by adding thereto four new
sections, designated §61-2-31, §61-2-32, §61-2-33 and §61-2-
34; and to amend and reenact §61-3-12 of said code, all
relating to providing for the criminal offenses of home
invasion in the first, second, third and fourth degrees, with
prescribed penalties, and otherwise modify the present law of
burglary.
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be repealed; that said code be amended by adding thereto four new
sections, designated §61-2-31, §61-2-32, §61-2-33 and §61-2-34; 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 in the first degree.
(a) As mentioned in sections thirty-one, thirty-two, thirty-three, and thirty-four of this article, a person "enters or remains
unlawfully" in or upon the premises when the premises, at the time
of such entry or remaining, are not open to the public and when the
offender is not otherwise licensed or privileged to do so.
(b) The term "dangerous instrument" as used in sections
thirty-one through thirty-four, 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, and includes a vehicle and a dog that has
been commanded to attack.
(c) The term "deadly weapon" as used in sections thirty-one
through thirty-four of this article, is given the same meaning as
provided for in section two, article seven, chapter sixty-one of
this code.
(d) The term "dwelling" as used in sections thirty-one through
thirty-four of this section, 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.
(e) 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:
(1) Armed with explosives, a deadly weapon or a dangerous
instrument, or
(2) 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.
(f) Anyone found to have violated subsection (e) of this
section is guilty of a felony and, upon conviction thereof, shall
be fined not more than $20,000, and imprisoned for twenty-five
years to life without mercy.
(g) Notwithstanding any other provision of this code, an
individual sentenced to a prison term pursuant to this section is
not eligible for any reduction in the individual's term of
sentence, nor shall the individual be eligible for any type of
alternative sentencing.
§61-2-32. Home invasion in the second degree.
(a) It shall be unlawful for a person to enter or remain
unlawfully in a dwelling with the intent to commit a crime, and
uses, or threatens to use, physical force against a person lawfully
present in the dwelling.
(b) Anyone found to have violated subsection (a) of this
section is guilty of a felony and, upon conviction thereof, shall
be fined not more than $15,000, and imprisoned for a term of twenty
years.
(c) Notwithstanding any other provision of this code, an
individual sentenced to a prison term pursuant to this section is not eligible for any reduction in the individual's term of
sentence, nor shall the individual be eligible for any type of
alternative sentencing.
§61-2-33. Home invasion of the third degree.
(a) It shall be unlawful for a person to enter or remain
unlawfully in a dwelling with the intent to commit a crime and
another person is lawfully present in the building.
(b) Anyone found to have violated subsection (a) of this
section is guilty of a felony and, upon conviction thereof, shall
be imprisoned for ten years.
(c) Notwithstanding any other provision of this code, an
individual sentenced to a prison term pursuant to this section is
not eligible for any reduction in the individual's term of
sentence, nor shall the individual be eligible for any type of
alternative sentencing.
§61-2-34. Home invasion of the fourth degree.
(a) It is unlawful for a person to enter or remain unlawfully
in a dwelling with the intent to commit a crime in it.
(b) Anyone found to have violated subsection (a) of this
section is guilty of a felony and, upon conviction thereof, 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 person shall, at any time, break and enter, or shall
enter 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
guilty of a felony and, upon conviction, shall be confined in a
state correctional facility not less than one nor more than ten
years. And if any person shall, at any time, break and enter, or
shall enter without breaking, any automobile, motorcar or bus, with
like intent, within the jurisdiction of any county in this state,
he
or she shall be 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: This bill provides for the criminal offenses of home
invasion in the first, second, third and fourth degrees, with
prescribed penalties, and otherwise modify the present law of
burglary.
Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would
be added.