COMMITTEE SUBSTITUTE
FOR
H. B. 4296
(By Delegates Canterbury, Campbell and Crosier)
(Originating in the Committee on the Judiciary)
[February 24, 2008]
A BILL to amend and reenact §53-4A-7 of the Code of West Virginia,
1931, as amended, relating to the rights of crime victims;
requiring prosecutors to provide crime victims with notice of
proceedings conducted in response to a post-conviction writ of
habeas corpus; insuring that crime victims' rights of notice
and participation have been afforded in conjunction with
orders issued and proceedings directed as a part of any relief
granted in response to a writ of habeas corpus; and requiring
notice to the affected victim when petitioner is released as
a result of an order of the court entered as a part of the
relief granted by a post-conviction habeas petition, when
otherwise required by law.
Be it enacted by the Legislature of West Virginia:
That §53-4A-7 of the Code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
ARTICLE 4A. POST-CONVICTION HABEAS CORPUS.
§53-4A-7a. Denial of relief; hearings; evidence; record; judgment.
(a) If the petition, affidavits, exhibits, records and other documentary evidence attached thereto, or the return or other
pleadings, or the record in the proceedings which resulted in the
conviction and sentence, or the record or records in a proceeding
or proceedings on a prior petition or petitions filed under the
provisions of this article, or the record or records in any other
proceeding or proceedings instituted by the petitioner to secure
relief from his conviction or sentence, show to the satisfaction of
the court that the petitioner is entitled to no relief, or that the
contention or contentions and grounds (in fact or law) advanced
have been previously and finally adjudicated or waived, the court
shall enter an order denying the relief sought. If it appears to
the court from said petition, affidavits, exhibits, records and
other documentary evidence attached thereto, or the return or other
pleadings, or any such record or records referred to above, that
there is probable cause to believe that the petitioner may be
entitled to some relief and that the contention or contentions and
grounds (in fact or law) advanced have not been previously and
finally adjudicated or waived, the court shall promptly hold a
hearing and/or take evidence on the contention or contentions and
grounds (in fact or law) advanced, and the court shall pass upon
all issues of fact without a jury. The court may also provide for
one or more hearings to be held and/or evidence to be taken in any
other county or counties in the state.
(b) A record of all proceedings under this article and all
hearings and evidence shall be made and kept. The evidentiary
depositions of witnesses taken by either the petitioner or the
state, on reasonable notice to the other, may be read as evidence. The court may receive proof by proper oral testimony or other
proper evidence. All of the evidence shall be made a part of the
record. When a hearing is held and/or evidence is taken by a judge
of a circuit court or statutory court in vacation, a transcript of
the proceedings shall be signed by the judge and certified to the
clerk of the court in which the judgment is to be rendered, and be
entered by him among the records of that court. A record of all
proceedings in the supreme court of appeals shall be entered among
the records of such court.
(c) When the court determines to deny or grant relief, as the
case may be, the court shall enter an appropriate order with
respect to the conviction or sentence in the former criminal
proceedings and such supplementary matters as are deemed necessary
and proper to the findings in the case, including, but not limited
to, remand, the vacating or setting aside of the plea, conviction
and sentence, rearraignment, retrial, custody, bail, discharge,
correction of sentence and resentencing, or other matters which may
be necessary and proper. In any order entered in accordance with
the provisions of this section, the court shall make specific
findings of fact and conclusions of law relating to each contention
or contentions and grounds (in fact or law) advanced, shall clearly
state the grounds upon which the matter was determined, and shall
state whether a federal and/or state right was presented and
decided. Any order entered in accordance with the provisions of
this section shall constitute a final judgment, and, unless
reversed, shall be conclusive.
(d) The prosecutor shall provide written notice to the victim of the crime of the time and place of all hearings conducted in
response to or as a result of a writ of habeas corpus.
(e) In the event that the court determines to grant relief,
resulting in the setting aside of a prior conviction or sentence,
and a new trial is ordered as a result of the petition, or results
in the negotiation of a new plea agreement or resentencing, the
court shall determine on the record whether the crime victim has
been afforded notice and opportunity to participate in all related
retrials, hearings and resentencing proceedings, in accordance with
the provisions of article eleven-a, chapter sixty-one of this code.
In the event that the petitioner is released as a result of any
order entered by the court entered in response to a petition for
habeas corpus or by an order entered in any related subsequent
proceeding, the victim of the crime shall be provided notice of the
release, as appropriate, in accordance with the provisions of
section eight, article eleven-a, chapter sixty-one of this code.
Email
Webmaster | © 2024 West Virginia Legislature **
