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Enrolled Version - Final Version Senate Bill 711 History

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Key: Green = existing Code. Red = new code to be enacted


ENROLLED

Senate Bill No. 711

(By Senators Wooton, Burnette, Caldwell, Hunter, Minard, Ross, Rowe, Snyder, Deem and Facemyer)

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[Passed March 9, 2002; in effect ninety days from passage.]

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AN ACT to amend and reenact section ten, article five, chapter sixty-two of the code of West Virginia, one thousand nine hundred thirty-one, as amended; and to amend and reenact sections two, three, four, six and seven, article eleven-c of said chapter, all relating to community corrections generally; adding community corrections boards to list of persons or entities which set participation fees in community corrections programs; imposing a twenty-five dollar mandatory special assessment against convicted felons for deposit in the community corrections fund; adding three dollars to court costs in criminal proceedings in municipal, magistrate or circuit court; excluding parking ordinances; and directing clerks of respective courts to collect the fee for deposit in the community corrections fund.

Be it enacted by the Legislature of West Virginia:
That section ten, article five, chapter sixty-two of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted; and that sections two, three, four, six and seven, article eleven-c of said chapter be amended and reenacted, all to read as follows:
ARTICLE 5. COSTS IN CRIMINAL CASES.

§62-5-10. Mandatory cost assessed upon conviction of a felony.
(a) Every circuit court shall assess, in every felony criminal matter as a cost to the defendant, an assessment in the sum of seventy-five dollars for each felony count of conviction. The assessment referred to herein shall be paid upon adjudication of guilt unless the court determines that the defendant is unable to pay in such a manner in which case payment of the assessment shall be paid prior to final disposition. If the circuit court determines that a defendant is financially unable to pay the assessment prior to final disposition, payment of the assessment shall be a mandatory condition of probation or parole.
(b) The clerk of the circuit court wherein the assessment is imposed under the provisions of subsection (a) of this section shall, on or before the last day of each month, transmit all costs received pursuant to this section to the state treasurer for deposit as follows: Fifty dollars to the credit of the crime victims compensation fund created by the provisions of section four, article two-a, chapter fourteen of this code and twenty-five dollars to the credit of the West Virginia community corrections fund created by the provisions of section four, article eleven-c of this chapter.
ARTICLE 11C. THE WEST VIRGINIA COMMUNITY CORRECTIONS ACT.
§62-11C-2. Community corrections subcommittee.
(a) A community corrections subcommittee of the governor's committee on crime, delinquency and correction is hereby created and assigned responsibility for screening community corrections programs submitted by community criminal justice boards or from other entities authorized by the provisions of this article to do so for approval for funding by the governor's committee and for making recommendations as to the disbursement of funds for approved community corrections programs. The subcommittee is to be comprised of fifteen members of the governor's committee including: A representative of the division of corrections, a representative of the regional jail and correctional facility authority, a person representing the interests of victims of crime, an attorney employed by a public defender corporation, an attorney who practices criminal law, a prosecutor and a representative of the West Virginia coalition against domestic violence. At the discretion of the West Virginia supreme court of appeals, the administrator of the supreme court of appeals, a probation officer and a circuit judge may serve on the subcommittee as ex officio, nonvoting members.
(b) The subcommittee shall elect a chairperson and a vice chairperson. Special meetings may be held upon the call of the chairperson, vice chairperson or a majority of the members of the subcommittee. A majority of the members of the subcommittee constitute a quorum.
(c) A working group of the community corrections subcommittee is hereby created to study safe and effective pretrial diversion programs for persons charged with domestic violence offenses and to recommend, based upon its findings, programs considered to be safe and effective in reducing incidences of domestic violence and educating persons charged with a domestic violence offense. The working group is to be comprised of the following members of the subcommittee: (1) If approved by the West Virginia supreme court of appeals, the circuit judge; (2) the prosecuting attorney; (3) the public defender or the criminal defense attorney; (4) the probation officer; and (5) the representative of the West Virginia coalition against domestic violence. The working group is to report its findings and recommendations to the subcommittee on or before the first day of July, two thousand two.
§62-11C-3. Duties of the governor's committee and the community corrections subcommittee.

(a) Upon recommendation of the community corrections subcommittee, the governor's committee shall propose for legislative promulgation in accordance with the provisions of article three, chapter twenty-nine-a of this code, emergency and legislative rules to:
(1) Establish standards for approval of community corrections programs submitted by community criminal justice boards or other entities authorized by the provisions of this article to do so;
(2) Establish minimum standards for community corrections programs to be funded, including requiring annual program evaluations;
(3) Make any necessary adjustments to the fees established in section four of this article;
(4) Establish reporting requirements for community corrections programs; and
(5) Carry out the purpose and intent of this article.
(b) Upon recommendation of the community corrections subcommittee, the governor's committee shall:
(1) Maintain records of community corrections programs including the corresponding community criminal justice board or other entity contact information and annual program evaluations, when available;
(2) Seek funding for approved community corrections programs from sources other than the fees collected pursuant to section four of this article; and
(3) Provide funding for approved community corrections programs, as available.
(c) The governor's committee shall submit, on or before the thirtieth day of September of each year, to the governor, the speaker of the House of Delegates, the president of the Senate and, upon request, to any individual member of the Legislature a report on its activities during the previous year and an accounting of funds paid into and disbursed from the special revenue account established pursuant to section four of this article.
§62-11C-4. Special revenue account.
(a) There is hereby created in the state treasury a special revenue account to be known as the "West Virginia community corrections fund". Expenditures from the fund are for the purposes set forth in subsection (d) of this section and are not authorized from collections but are to be made only in accordance with appropriation by the Legislature and in accordance with the provisions of article three, chapter twelve of this code and upon the fulfillment of the provisions set forth in article two, chapter five-a of this code: Provided, That for the fiscal year ending the thirtieth day of June, two thousand two, expenditures are authorized from collections rather than pursuant to an appropriation by the Legislature. The West Virginia community corrections fund may receive any gifts, grants, contributions or other money from any source which is specifically designated for deposit in the fund.
(b) Beginning on the effective date of this article, in addition to the fee required in section nine, article twelve of this chapter, a fee not to exceed thirty dollars per month, unless modified by legislative rule as provided in section three of this article, is also to be collected from those persons on probation. This fee is to be based upon the person's ability to pay. The magistrate or circuit judge shall conduct a hearing prior to imposition of probation and make a determination on the record that the offender is able to pay the fee without undue hardship. The magistrate clerk or circuit clerk shall collect all fees imposed pursuant to this subsection and deposit them in a separate account. Within ten calendar days following the beginning of the calendar month, the magistrate clerk or circuit clerk shall forward the amount deposited to the state treasurer to be credited to the West Virginia community corrections fund.
(c) Beginning on the effective date of this article, in addition to the fee required in section five, article eleven-b of this chapter, a fee not to exceed five dollars per day, unless modified by legislative rule as provided in section three of this article, is also to be collected from those persons on home incarceration. The circuit judge, magistrate or municipal court judge shall consider the person's ability to pay in determining the imposition and amount of the fee. The circuit clerk, magistrate clerk or municipal court clerk shall collect all fees imposed pursuant to this subsection and deposit them in a separate account. Within ten calendar days following the beginning of the calendar month, the circuit clerk or municipal court clerk shall forward the amount deposited to the state treasurer to be credited to the West Virginia community corrections fund.
(d) Beginning on the first day of July, two thousand two, in addition to the usual court costs in any criminal case taxed against any defendant convicted in a municipal, magistrate or circuit court, excluding municipal parking ordinances, a three-dollar fee shall be added. The circuit clerk, magistrate clerk or municipal court clerk shall collect all fees imposed pursuant to this subsection and deposit them in a separate account. Within ten calendar days following the beginning of the calendar month, the circuit clerk, magistrate court clerk and the municipal court clerk shall forward the amount deposited to the state treasurer to be credited to the West Virginia community corrections fund.
(e) The moneys of the West Virginia community corrections fund are to be disbursed by the governor's committee on crime, delinquency and correction, upon recommendation by the community corrections subcommittee, for the funding of community corrections programs and to pay expenses of the governor's committee in administering the provisions of this article, which expenses may not in any fiscal year exceed ten percent of the funds deposited to the special revenue account during that fiscal year.
(f) Any disbursements from the West Virginia community corrections fund allocated for community corrections programs by the governor's committee may be made contingent upon local appropriations or gifts in money or in kind for the support of the programs. Any county commission of any county or the governing body of a municipality may appropriate and expend money for establishing and maintaining community corrections programs.
(g) Nothing in this article may be construed to mandate funding for the West Virginia community corrections fund or to require any appropriation by the Legislature.
§62-11C-6. Community criminal justice boards.
(a) Each county or combination of counties or a county or counties and a Class I or II municipality that seek to establish community-based corrections services shall establish a community criminal justice board: Provided, That if a county has not established a community criminal justice board by the first day of July, two thousand two, the chief probation officer of such county, with the approval of the chief judge of the circuit, may apply for and receive approval and funding from the governor's committee for such programs as are authorized by the provisions of section five of this article. Any county which chooses to operate without a community criminal justice board shall be subject to the regulations and requirements established by the community corrections subcommittee and the governor's committee.
(b) The community criminal justice board is to consist of no more than fifteen voting members.
(c) All members of the community criminal justice board are to be residents of the county or counties represented.
(d) The community criminal justice board is to consist of the following members:
(1) The sheriff or chief of police or, if the board represents more than one county or municipality, at least one sheriff or chief of police from the counties represented;
(2) The prosecutor or, if the board represents more than one county, at least one prosecutor from the counties represented;
(3) If a public defender corporation exists in the county or counties represented, at least one attorney employed by any public defender corporation existing in the counties represented or, if no public defender office exists, one criminal defense attorney from the counties represented;
(4) One member to be appointed by the local board of education or, if the board represents more than one county, at least one member appointed by a board of education of the counties represented;
(5) One member with a background in mental health care and services to be appointed by the commission or commissions of the county or counties represented by the board;
(6) Two members who can represent organizations or programs advocating for the rights of victims of crimes with preference given to organizations or programs advocating for the rights of victims of the crimes of domestic violence or driving under the influence; and
(7) Three at-large members to be appointed by the commission or commissions of the county or counties represented by the board.
(e) At the discretion of the West Virginia supreme court of appeals, any or all of the following people may serve on a community criminal justice board as ex officio, nonvoting members:
(1) A circuit judge from the county or counties represented;
(2) A magistrate from the county or counties represented; or
(3) A probation officer from the county or counties represented.
(f) Community criminal justice boards may:
(1) Provide for the purchase, development and operation of community corrections services;
(2) Coordinate with local probation departments in establishing and modifying programs and services for offenders;
(3) Evaluate and monitor community corrections programs, services and facilities to determine their impact on offenders; and
(4) Develop and apply for approval of community corrections programs by the governor's committee on crime, delinquency and correction.
(g) If a community criminal justice board represents more than one county, the appointed membership of the board, excluding any ex officio members, shall include an equal number of members from each county, unless the county commission of each county agrees in writing otherwise.
(h) If a community criminal justice board represents more than one county, the board shall, in consultation with the county commission of each county represented, designate one county commission as the fiscal agent of the board.
(i) Any political subdivision of this state operating a community corrections program shall, regardless of whether or not the program has been approved by the governor's committee on crime, delinquency and correction, provide to the governor's committee required information regarding the program's operations as required by legislative rule.
§62-11C-7. Supervision or participation fee.

(a) A circuit judge, magistrate, municipal court judge or community criminal justice board may require the payment of a supervision or participation fee from any person required to be supervised by or participate in a community corrections program. The circuit judge, magistrate, municipal court judge or community criminal justice board shall consider the person's ability to pay in determining the imposition and amount of the fee.
(b) All fees ordered by the circuit court or community criminal justice board pursuant to this section are to be paid to the circuit clerk, who shall monthly remit the fees to the treasurer of the county designated as the fiscal agent for the board pursuant to section six of this article. All fees ordered by the magistrate court pursuant to this section are to be paid to the magistrate clerk, who shall monthly remit the fees to the treasurer of the county designated as the fiscal agent for the board pursuant to said section. All fees ordered by the municipal court judge pursuant to this section are to be paid to the municipal court clerk who shall monthly remit the fees to the treasurer of the county designated as the fiscal agent for the board pursuant to section six of this article.
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