Committee Substitute
House Bill 4115 History
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COMMITTEE SUBSTITUTE
FOR
H. B. 4115
(By
Mr. Speaker, Mr. Kiss, and Delegates Varner,
Stemple, Michael, Kominar, Cann and Amores
)
(Originating in the Committee on the Judiciary)
[February 13, 2002]
A BILL to amend and reenact section nine, article one, chapter five
of the code of West Virginia, one thousand nine hundred
thirty-one, as amended; to amend article four, chapter fifty
of said code by adding thereto a new section, designated
section two-a; and to amend and reenact section nine, article
ten, chapter sixty-two of said code, all relating to providing
that correctional officers at state facilities and regional
jails have authority to execute warrants on persons in their
custody; authorizing correctional officers to apply for
fugitive from justice warrants when they have reasonable
grounds to believe persons in their custody are charged with
crimes in other states; and, providing that video arraignments
be conducted by magistrates in the county wherein the charges
upon which a person is being arraigned are pending or in the alternative, by any magistrate designated to be on-call to
conduct video arraignments.
Be it enacted by the Legislature of West Virginia:
That section nine, article one, chapter five of the code of
West Virginia, one thousand nine hundred thirty-one, as amended, be
amended and reenacted; that article four, chapter fifty of said
code be amended by adding thereto a new section, designated section
two-a; and that section nine, article ten, chapter sixty-two of
said code be amended and reenacted, all to read as follows:
CHAPTER 5. GENERAL POWERS AND AUTHORITY OF THE GOVERNOR,
SECRETARY OF STATE AND ATTORNEY GENERAL; BOARD OF PUBLIC WORKS;
MISCELLANEOUS AGENCIES, COMMISSIONS, OFFICES, PROGRAMS, ETC.
ARTICLE 1. THE GOVERNOR.
§5-1-9. Hearing after arrest; application for writ of habeas
corpus; arrest and confinement of fugitives from
another state; bail; persons involved in criminal or
civil actions in this state.
(a) No person arrested upon such a warrant shall be delivered
over to the agent whom the executive authority demanding him or her
shall have appointed to receive him or her unless he or she
shall
first be taken forthwith before a judge of a court of record in
this state, who shall inform him or her
of the demand made for his
or her
surrender and of the crime with which he or she
is charged, and that he or she
has the right to demand and procure legal
counsel and if the prisoner or his or her
counsel shall state that
he or they desire to test the legality of his or her
arrest, the
judge of such the court of record shall fix a reasonable time to be
allowed him or her
within which to apply for a writ of habeas
corpus. When such a writ is applied for, notice thereof, and of
the time and place of hearing thereon, shall be given to the
prosecuting attorney of the county in which the arrest is made and
in which the accused is in custody, and to the said agent of the
demanding state.
(b) Any officer who shall deliver to the agent for extradition
of the demanding state a person in his or her
custody under the
governor's warrant, in wilful willful disobedience to subdivision
(a) of this section, shall be guilty of a misdemeanor and, on
conviction thereof shall be fined not more than one thousand
dollars or be imprisoned not more than six months, or both.
(c) The officer or persons executing the governor's warrant of
arrest, or the agent of the demanding state to whom the prisoner
may have been delivered, may, when necessary, confine the prisoner
in the jail of any county or regional jail or city through which he
or she
may pass; and the keeper of such the jail shall receive and
safely keep the prisoner until the officer or person having charge
of him or her
is ready to proceed on his or her
route, such the officer or person being chargeable with the expense of keeping.
The officer or agent of a demanding state to whom a prisoner
may have been delivered following extradition proceedings in
another state, or to whom a prisoner may have been delivered after
waiving extradition in such the other state, and who is passing
through this state with such a prisoner for the purpose of
immediately returning such the prisoner to the demanding state may,
when necessary, confine the prisoner in the jail of any county or
regional jail or city through which he or her
may pass; and the
keeper of such the jail shall receive and safely keep the prisoner
until the officer or agent having charge of him or her
is ready to
proceed on his or her
route, such the officer or agent, however,
being chargeable with the expense of keeping: Provided, That such
the officer or agent shall produce and show to the keeper of such
the jail satisfactory written evidence of the fact that he or she
is actually transporting such a prisoner to the demanding state
after a requisition by the executive authority of such the
demanding state. Such The prisoner shall may not be entitled to
demand a new requisition while in this state.
(d) Whenever any person within this state shall be charged on
the oath of any credible person before any judge or justice
magistrate of this state with the commission of any crime in any
other state and, except in cases arising under subdivision (g), section seven of this article, with having fled from justice, or
with having been convicted of a crime in that state and having
escaped from confinement, or having broken the terms of his or her
bail, probation or parole, or whenever complaint shall have has
been made before any judge or justice magistrate in this state
setting forth on the affidavit of any credible person in another
state that a crime has been committed in such the state and that
the accused has been charged in such the state with the commission
of the crime, and, except in cases arising under subdivision (g),
section seven of this article, has fled from justice, or with
having been convicted of a crime in that state and having escaped
from confinement, or having broken the terms of his or her
bail,
probation or parole, and is believed to be in this state, the judge
or justice magistrates shall issue a warrant directed to any peace
officer commanding him or her
to apprehend the person named
therein, wherever he or she
may be found in this state, and to
bring him or her
before the same or any other judge, justice
magistrate, or court who or which may be available in or convenient
of access to the place where the arrest may be made, to answer the
charge or complaint and affidavit, and a certified copy of the
sworn charge or complaint and affidavit upon which the warrant is
issued shall be attached to the warrant.
(e) The arrest of a person may be lawfully made also by any peace officer, or a private person, or a correction officer when
the person is in their custody, may without a warrant, upon
reasonable information that the accused stands charged in the
courts of a state with a crime punishable by death or by
imprisonment for a term exceeding one year, but when so arrested
the accused must be taken before a judge or justice magistrate with
all practicable speed and complaint must be made against him or her
under oath setting forth the ground for the arrest as in the
preceding section and thereafter his or her
answer shall be heard
as if he or she
had been arrested on a warrant.
(f) If from the examination before the judge or justice
magistrate it appears that the person held is the person charged
with having committed the crime alleged and, except in cases
arising under subdivision (g), section seven of this article, that
he or she
has fled from justice, the judge or justice magistrate
must, by a warrant reciting the accusation, commit him or her
to
the county jail for such a time not exceeding thirty days, and
specified in the warrant, as will enable the arrest of the accused
to be made under a warrant of the governor on a requisition of the
executive authority of the state having jurisdiction of the
offense, unless the accused give bail as provided in subdivision
(g) of this section, or until he or she
shall be legally
discharged.
(g) Unless the offense with which the prisoner is charged is
shown to be an offense punishable by death or life imprisonment
under the laws of the state in which it was committed, a judge or
justice magistrate in this state may admit the person arrested to
bail by bond, with sufficient sureties, and in such a sum as he or
she deems considers proper, conditioned for his or her
appearance
before him or her
at a time specified in such the bond, and for his
or her
surrender, to be arrested upon the warrant of the governor
of this state.
(h) If the accused is not arrested under warrant of the
governor by the expiration of the time specified in the warrant or
bond, a judge or justice magistrate may discharge him or her
or may
recommit him or her
for a further period not to exceed sixty days,
or a judge or justice magistrate may again take bail for his or her
appearance and surrender as provided in subdivision (g) of this
section, but within a period not to exceed sixty days after the
date of such the new bond.
(i) If the prisoner is admitted to bail, and fails to appear
and surrender himself or herself according to the conditions of his
or her
bond, the judge, or justice magistrate, by proper order,
shall declare the bond forfeited and order his or her
immediate
arrest without warrant if he or she
be within this state. Recovery
may be had on such a bond in the name of the state as in the case of other bonds given by the accused in criminal proceedings within
this state.
(j) If a criminal prosecution has been instituted against such
the person under the laws of this state and is still pending, the
governor, in his or her
discretion, either may surrender him or her
on demand of the executive authority of another state or hold him
or her
until he or she
has been tried and discharged or convicted
and punished in this state: Provided, That any person under
recognizance to appear as a witness in any criminal proceeding
pending in this state may in the discretion of the governor be
surrendered on demand of the executive authority of another state
or be held until such criminal proceeding pending in this state has
been determined: Provided further however, That any person who was
in custody upon any execution, or upon process in any suit, at the
time of being apprehended for a crime charged to have been
committed without the jurisdiction of this state, shall may not be
delivered up without the consent of the plaintiff in such an
execution or suit, until the amount of such the execution shall
have has been paid, or until such the person shall be otherwise
discharged from such the execution or process.
(k) The guilt or innocence of the accused as to the crime of
which he or she
is charged may not be inquired into by the governor
or in any proceeding after the demand for extradition accompanied by a charge of crime in legal form as provided in this article
shall have has been presented to the governor, except as it may be
involved in identifying the person held as the person charged with
the crime.
CHAPTER 50. MAGISTRATE COURTS.
ARTICLE 4. PROCEDURE BEFORE TRIAL.
§50-4-2a. Initial appearance by video to be conducted by
magistrate court wherein offense is charged.
To the extent practicable, an arrestee detained at any
regional jail facility, who is arraigned with the use of video
imaging equipment, shall be arraigned by the magistrate court in
which the charges upon which the arrestee is being arraigned are
pending. Video arraignment also may be conducted by any other
magistrate who is on call if no magistrate is available of the
court in which the charges upon which the arrestee is being
arraigned are pending. In addition, irrespective of the
availability of a magistrate of the court in which the charges upon
which the arrestee is being arraigned are pending, video
arraignments may be conducted by any magistrate who is designated
to be on call to conduct video arraignments of arrestees detained
at the regional jail facility. Failure to comply with this section
does not invalidate any otherwise lawful arraignment.
CHAPTER 62. CRIMINAL PROCEDURE.
ARTICLE 10. PREVENTION OF CRIME.
§62-10-9. Power and authority of sheriffs, deputy sheriffs and
correctional officers to make arrests.
Sheriffs and each of their deputies are hereby authorized and
empowered within their respective counties to make arrests for any
crime for which a warrant has been issued in violation of any laws
of the United States or of this state, and to make arrests without
warrant for all violations of any of the criminal laws of the
United States, or of this state, when committed in their presence.
A county correctional officer may execute a warrant, issued for the
arrest of a person, only when the person named in the warrant
voluntarily surrenders to, or is already in the custody of the
correctional officer at the county jail, or regional jail or a
state correctional facility at which the correctional officer is
employed.
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