COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 657
(By Senators Wooton, Ross, Snyder, Unger, Anderson, Jackson,
Plymale, Craigo, Prezioso, McCabe, Helmick, Fanning, Edgell,
Kessler, Minard, Sharpe, Mitchell, Hunter, Rowe, Caldwell,
Oliverio, McKenzie, Facemyer, Redd, Minear, Sprouse and Tomblin,
Mr. President)
____________
[Originating in the Committee on the Judiciary;
reported April 3, 2001.]
____________
A BILL to amend and reenact section four, article fifteen, chapter
seventeen of the code of West Virginia, one thousand nine
hundred thirty-one, as amended; to amend and reenact sections
twenty-six and twenty-eight, article seven, chapter twenty of
said code; and to amend and reenact section one-a, article
eleven-a, chapter sixty-two of said code, all relating to
including work on public and not-for-profit cemeteries and
family cemeteries accessible by the public as work which may
be performed by jail or prison labor or ordered as alternative
sentencing; and making certain technical revisions.
Be it enacted by the Legislature of West Virginia:
That section four, article fifteen, chapter seventeen of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted; that sections twenty-six and
twenty-eight, article seven, chapter twenty of said code be amended
and reenacted; and that section one-a, article eleven-a, chapter
sixty-two of said code be amended and reenacted, all to read as
follows:
CHAPTER 17. ROADS AND HIGHWAYS.
ARTICLE 15. COUNTY CONVICT ROAD FORCE.
§17-15-4. Work by prisoners; relief of sheriffs and others from
liability for injuries, etc.
(a) Any person convicted of a criminal offense and sentenced
to confinement in a county or regional jail shall, as incident to
such sentence of confinement, be required to perform labor within
the jail, as a trustee or otherwise, or in and upon the buildings,
grounds, institutions, roads, bridges, streams or other public
works of the county,
county public and not-for-profit cemeteries
and family cemeteries freely accessible by the public or the area
within which the regional jail is located if he or she meets the
following criteria:
(1) Such person is at least eighteen years of age;
(2) Such person is physically and mentally sound and has not been exempted for medical reasons from such work by a licensed
physician or other medical professional; and
(3) Such person is
deemed considered by the county commission,
the sheriff or the
regional jail commission executive director of
the West Virginia regional jail authority or designee not to pose
a threat to the community if released for work purposes.
(b) The work described in
the subsection (a) of this section
shall be performed under the supervision, care and custody of the
county commission, the
regional jail commission executive director
of the West Virginia regional jail authority or designee, the
sheriff, his
or her deputies, correctional officers or other person
charged with inmate supervision to perform maintenance or control
litter in this state.
(c) In order to effectuate the provisions of this section, the
county commission, the sheriff or the
regional jail commission
executive director of the West Virginia regional jail authority or
designee shall promulgate rules
and regulations for the safe and
useful employment of inmate labor.
(d) Notwithstanding any provision of this code to the
contrary, the county commission, its members and agents, the
regional jail commission executive director of the West Virginia
regional jail authority or designee, its members or agents, the
sheriff, his
or her deputies, correctional officers and agents shall be immune from liability of any kind for accidents, injuries
or death to such inmate except for accident, injury or death
resulting directly from gross negligence or malfeasance.
(e) The sheriff of the county in which the work is to be
performed, with the approval of the county commission or the
regional jail commission executive director of the West Virginia
regional jail authority or designee, may hire or appoint any
personnel necessary for the supervision of inmate labor.
(f) Nothing in this section shall be construed to allow the
use of inmate labor for private projects or as contract employees
of for-profit businesses.
(g) Any inmate who performs work pursuant to the provisions of
this section shall receive, as sole and full compensation therefor,
a reduction in his or her term of incarceration of not more than
twenty-five percent of the original sentence excluding any other
statutorily granted "good time". Each eight-hour period of
approved work shall entitle an inmate to one day's sentence
reduction:
Provided, That any "good time" earned pursuant to the
provisions of this section shall be in addition to any other
reduction of sentence the inmate may accumulate.
(h) Any person being held as a detainee or for contempt may
voluntarily participate in such labor as provided for in this
section under the terms and conditions hereinbefore set forth.
CHAPTER 20. NATURAL RESOURCES.
ARTICLE 7. LAW ENFORCEMENT, MOTORBOATING, LITTER.
§20-7-26. Unlawful disposal of litter; civil and criminal penalty;
litter control fund; evidence; notice violations;
litter receptacle placement; penalty; duty to enforce
violations.
(a) (1) Any person who places, deposits, dumps or throws or
causes to be placed, deposited, dumped or thrown any litter as
defined in section twenty-four of this article in or upon any
public or private highway, road, street or alley or upon any
private property without the consent of the owner or in or upon any
public park or other public property other than in such place as
may be set aside for such purpose by the governing body having
charge thereof, is guilty of a misdemeanor and, upon
his or her
first conviction, shall be
fined sentenced as follows: For a first
offense, fined not less than fifty dollars nor more than five
hundred dollars
; for a second offense, fined not less than two
hundred fifty dollars nor more than one thousand dollars
; and for
a third and any subsequent offense, fined not less than five
hundred dollars nor more than two thousand dollars and confined in
the county or regional jail not less than forty-eight hours nor
more than one year
: Provided, That a person shall not be held
responsible for the actions of animals under their direct control. At the request of the defendant or in the discretion of the court,
the court may sentence the defendant to pick up and remove from any
public highway, road, street, alley or any other public park or
public property or from county public and not-for-profit cemeteries
and family cemeteries freely accessible by the public,
as
designated by the court, any and all litter, garbage, refuse,
trash, cans, bottles, papers, ashes, carcass of any dead animal or
any part thereof, offal or any other offensive or unsightly matter
placed, deposited, dumped or thrown contrary to the provisions of
this section by anyone prior to the date of such conviction. For
the first offense, the The alternative sentence of litter pickup in
lieu of a fine or incarceration
shall be as follows: For the first
offense, not less than eight hours nor more than sixteen hours in
lieu of a fine; for the second offense, not less than sixteen hours
nor more than thirty-two hours; and for a third and any subsequent
offense, not less than thirty-two hours nor more than sixty-four
hours
: Provided, however, That the alternative sentence of litter
pickup imposed with regard to a third or subsequent offense shall
be in lieu of the fine or sentence of incarceration, but not both.
For purposes of this subdivision subsection, the term "court"
includes circuit, magistrate and municipal courts.
(2) Upon his or her second conviction, such person shall be
fined not less than two hundred fifty dollars nor more than one thousand dollars: Provided, That a person shall not be held
responsible for the actions of animals under their direct control.
At the request of the defendant or in the discretion of the court,
the court may sentence the defendant to pick up and remove from any
public highway, road, street, alley or any other public park or
public property as designated by the court, any and all litter,
garbage, refuse, trash, cans, bottles, papers, ashes, carcass of
any dead animal or any part thereof, offal or any other offensive
or unsightly matter placed, deposited, dumped or thrown contrary to
the provisions of this section by anyone prior to the date of such
conviction. For the second offense, the alternative sentence of
litter pickup shall be not less than sixteen hours nor more than
thirty-two hours in lieu of a fine. For purposes of this
subdivision, the term "court" shall include circuit and magistrate
courts.
(3) Upon such person's third and successive conviction, he or
she shall be fined not less than five hundred dollars nor more than
two thousand dollars and confined in the county or regional jail
not less than forty-eight hours nor more than one year: Provided,
That a person shall not be held responsible for the actions of
animals under their direct control. At the request of the
defendant or in the discretion of the court, the court may sentence
the defendant to pick up and remove from any public highway, road, street, alley or any other public park or public property as
designated by the court, any and all litter, garbage, refuse,
trash, cans, bottles, papers, ashes, carcass of any dead animal or
any part thereof, offal or any other offensive or unsightly matter
placed, deposited, dumped or thrown contrary to the provisions of
this section by anyone prior to the date of such conviction. Upon
a third conviction, the alternative sentence of litter pickup shall
be not less than thirty-two hours nor more than sixty-four hours in
lieu of such fine or incarceration, but not both. For purposes of
this subdivision, the term "court" includes circuit and magistrate
courts.
(4) (2) The alternative sentence of litter pickup herein set
forth shall be verified by the conservation officers from the
division of natural resources or environmental inspectors from the
division of environmental protection or a regional engineering
technician from the division of environmental protection pollution
prevention and open dumps program (PPOD) of the county in which the
offense occurred. Any defendant receiving the herein specified
alternative sentence of litter pickup shall provide, within a time
to be set by the court, written acknowledgment from said
conservation officers or environmental officers that the sentence
has been completed.
(5) (3) Any person who has been found by the court to have willfully failed to comply with the terms of an alternative
sentence imposed by the court pursuant to this section is subject,
at the discretion of the court, to up to twice the original penalty
provisions available to the court at the time of conviction.
(6) (4) If any litter is thrown or cast from a motor vehicle
or boat, such action is prima facie evidence that the driver of
such motor vehicle or boat intended to violate the provisions of
this section. If any litter is dumped or discharged from a motor
vehicle or boat, such action is prima facie evidence that the owner
and driver of such motor vehicle or boat intended to violate the
provisions of this section.
(b) Any litter found on any public or private property with
any indication of ownership on it will be evidence creating a
rebuttable inference it was deposited improperly by the person
whose identity is indicated and any person who improperly disposes
of litter is subject to either a civil fine of up to five hundred
dollars for such litter or required to pay the costs of removal of
such litter if the removal of such litter is required to be done by
the division, at the discretion of the director. All such fines
and costs shall be deposited to the litter control fund: Provided,
That no inference shall be drawn solely from the presence of any
logo, trademark, trade name or other similar mass reproduced
identifying character appearing on litter found.
(c) Every person who is convicted of or pleads guilty to
disposing of litter in violation of subsection (a) of this section
shall pay the sum of not less than fifty dollars nor more than five
hundred dollars as costs for cleanup, investigation and prosecution
in such case, in addition to any other court costs that the court
is otherwise required by law to impose upon such convicted person.
The clerk of the circuit court, magistrate court or municipal
court wherein such additional costs are imposed shall, on or before
the last day of each month, transmit all such costs received under
this subsection to the state treasurer for deposit in the state
treasury to the credit of a special revenue fund to be known as the
litter control fund which is hereby continued. Expenditures for
purposes set forth in this section are not authorized from
collections but are to be made only in accordance with
appropriation and in accordance with the provisions of article
three, chapter twelve of this code and upon 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, one thousand nine hundred ninety-three, expenditures shall be
authorized from collections. Amounts collected which are found
from time to time to exceed the funds needed for the purposes set
forth in this article may be transferred to other accounts or funds
and redesignated for other purposes by appropriation of the Legislature.
(d) (1) The commissioner of the division of motor vehicles,
upon registering a motor vehicle or issuing an operator's or
chauffeur's license, shall issue to the owner or licensee, as the
case may be, a copy of subsection (a) of this section.
(2) The commissioner of the division of highways shall cause
appropriate signs to be placed at the state boundary on each
primary and secondary road and at other locations throughout the
state informing those entering the state of the maximum penalty
provided for disposing of litter in violation of subsection (a) of
this section.
(e) Any state agency or political subdivision that owns,
operates or otherwise controls any public area as may be designated
by the director by rule promulgated pursuant to subdivision (8),
subsection (a), section twenty-five of this article shall procure
and place litter receptacles at its own expense upon its premises
and shall remove and dispose of litter collected in such litter
receptacles. After receiving two written warnings from any
law-enforcement officer or officers to comply with this subsection
or the said rules of the director, any person who fails to place
and maintain such litter receptacles upon his or her premises in
violation of this subsection or the rules of the director shall be
fined fifteen dollars per day of such violation.
(f) No portion of this section shall be construed to restrict
a private owner in the use of the owner's own private property in
any manner otherwise authorized by law.
(g) Any law-enforcement officer who shall observe a person
violating the provisions of this section has a mandatory duty to
arrest or otherwise prosecute the violator to the limits provided
herein. The West Virginia division of highways shall investigate
and cause to be prosecuted violations of this section occurring
upon the highways of the state as the term "highways" is defined in
chapter seventeen of this code.
§20-7-28. Litter along streams, criminal penalties, enforcement.
(a) It is unlawful to place, deposit, dump or throw or cause
to be placed, deposited, dumped or thrown any litter as defined in
section twenty-four of this article and also any garbage, refuse,
trash, can, bottle, paper, ashes, carcass of any dead animal or any
part thereof, offal or any other offensive or unsightly matter into
any river, stream, creek, branch, brook, lake or pond or upon the
surface of any land within one hundred yards thereof or in such
location that high water or normal drainage conditions will cause
any such materials or substances to be washed into any river,
stream, creek, branch, brook, lake or pond.
(b) No portion of this section restricts an owner, renter or
lessee in the use of his or her own private property or rented or leased property or to prohibit the disposal of any industrial and
other wastes into waters of this state in a manner consistent with
the provisions of article eleven, chapter twenty-two of this code.
But if any owner, renter or lessee, private or otherwise, knowingly
permits any such materials or substances to be placed, deposited,
dumped or thrown in such location that high water or normal
drainage conditions will cause any such materials or substances to
wash into any river, stream, creek, branch, brook, lake or pond, it
is prima facie evidence that such owner, renter or lessee intended
to violate the provisions of this section: Provided, That if a
landowner, renter or lessee, private or otherwise, reports any such
placing, depositing, dumping or throwing of any such substances or
materials upon his or her property to the prosecuting attorney,
county commission or the division of natural resources or the
division of environmental protection, then the landowner, renter or
lessee will be presumed to not have knowingly permitted such
placing, depositing, dumping or throwing of such materials or
substances.
(c) In addition to enforcement by the director, the director
of the division of environmental protection, the chief of the
office of water resources of the division of environmental
protection and the division of natural resources' chief
law-enforcement officer the provisions of this section may be enforced by all other proper law-enforcement agencies.
(d) (1) Any person violating any provision of this section is
guilty of a misdemeanor and, upon his or her first conviction,
shall be fined sentenced
as follows: For a first offense, fined
not less than fifty nor more than five hundred dollars; for a
second offense, fined not less than two hundred fifty dollars nor
more than one thousand dollars and confined in the county or
regional jail not less than twenty-four hours nor more than six
months
; and for a third and any subsequent offense, fined not less
than five hundred dollars nor more than two thousand dollars and
confined in the county or regional jail not less than forty-eight
hours nor more than one year. At the request of the defendant or
in the discretion of the court, the court may sentence the
defendant to pick up and remove from any area of a bank of any
river, stream, creek, branch, brook, lake or pond or other property
with prior permission of the owner, from county public and not-for-
profit cemeteries and family cemeteries freely accessible by the
public, the area to be specified by the court, any and all litter,
garbage, refuse, trash, cans, bottles, papers, ashes, carcass of
any dead animal or any part thereof, offal or any other offensive
or unsightly matter placed, deposited, dumped or thrown contrary to
the provisions of this section by anyone prior to the date of such
conviction. For the first offense, the alternative sentence of litter pickup shall be not less than eight hours nor more than
sixteen hours in lieu of a fine. For the second offense, the
alternative sentence of litter pickup shall be not less than
sixteen hours nor more than thirty-two hours in lieu of such fine
or incarceration, but not both. For a third and any subsequent
offense, the alternative sentence of litter pickup shall be not
less than thirty-two hours nor more than sixty-four hours in lieu
of such fine or incarceration, but not both. For purposes of this
subdivision subsection, the term "court" includes circuit,
magistrate and municipal courts.
(2) Upon his or her second conviction, such person shall be
fined not less than two hundred fifty dollars nor more than one
thousand dollars and imprisoned in the county jail not less than
twenty-four hours nor more than six months. At the request of the
defendant or in the discretion of the court, the court may sentence
the defendant to pick up and remove from any area of a bank of any
river, stream, creek, branch, brook, lake or pond, or other
property with prior permission of the owner, the area to be
specified by the court, any and all litter, garbage, refuse, trash,
cans, bottles, papers, ashes, carcass of any dead animal or any
part thereof, offal or any other offensive or unsightly matter
placed, deposited, dumped or thrown contrary to the provisions of
this section by anyone prior to the date of such conviction. For the second offense, the alternative sentence of litter pickup shall
be not less than sixteen hours nor more than thirty-two hours in
lieu of such fine or incarceration, but not both. For purposes of
this subdivision, the term "court" includes circuit and magistrate
courts.
(3) Upon such person's third and successive conviction, he or
she shall be fined not less than five hundred dollars nor more than
two thousand dollars and imprisoned in the county or regional jail
not less than forty-eight hours nor more than one year. At the
request of the defendant or in the discretion of the court, the
court may sentence the defendant to pick up and remove from any
area of a bank of any river, stream, creek, branch, brook, lake or
pond, or other property with prior permission of the owner, the
area to be specified by the court, any and all litter, garbage,
refuse, trash, cans, bottles, papers, ashes, carcass of any dead
animal or any part thereof, offal or any other offensive or
unsightly matter placed, deposited, dumped or thrown contrary to
the provisions of this section by anyone prior to the date of such
conviction. Upon a third conviction the alternative sentence of
litter pickup shall be not less than thirty-two hours nor more than
sixty-four hours in lieu of such fine or incarceration, but not
both. For purposes of this subdivision, the term "court" includes
circuit and magistrate courts.
(4) (2) The alternative sentence of litter pickup herein set
forth shall be verified by division of natural resources
conservation officers or by environmental inspectors from the
division of environmental protection or a regional engineering
technician from the pollution prevention and open dumps program
(PPOD) of the division of environmental protection, of the county
in which the offense occurred. Any defendant receiving the herein
specified alternative sentence of litter pickup shall provide
within a time to be set by the court written acknowledgment from
said conservation officers or environmental officers that the
sentence has been completed.
(5) (3) Any person who has been found by the court to have
willfully failed to comply with the terms of an alternative
sentence imposed by the court pursuant to this section is subject
at the discretion of the court to up to twice the original penalty
provisions available to the court at the time of conviction.
CHAPTER 62. CRIMINAL PROCEDURE.
ARTICLE 11A. RELEASE FOR WORK AND OTHER PURPOSES.
§62-11A-1a. Other sentencing alternatives.
(a) Any person who has been convicted in a circuit court or in
a magistrate court under any criminal provision of this code of a
misdemeanor or felony, which is punishable by imposition of a fine
or confinement in the county or regional jail or a state correctional facility, or both fine and confinement, may, in the
discretion of the sentencing judge or magistrate as an alternative
to the sentence imposed by statute for the crime, be sentenced
under one of the following programs:
(1) The weekend jail program under which persons would be
required to spend weekends or other days normally off from work in
jail;
(2) The work program under which sentenced persons would be
required to spend the first two or more days of their sentence in
jail and then, in the discretion of the court, would be assigned to
a county agency to perform labor within the jail, or in and upon
the buildings, grounds, institutions, bridges, roads, including
orphaned roads used by the general public,
and public works within
the county
and county public and not-for-profit cemeteries and
family cemeteries freely accessible by the public. Eight hours of
labor shall be credited as one day of the sentence imposed.
Persons sentenced under this program may be required to provide
their own transportation to and from the work site, lunch and work
clothes;
(3) The community service program under which persons
sentenced would spend no time in jail but would be sentenced to a
number of hours or days of community service work with government
entities or charitable or nonprofit entities,
including county public and not-for-profit cemeteries and family cemeteries freely
accessible by the public, approved by the circuit court. Regarding
any portion of the sentence designated as confinement, eight hours
of community service work shall be credited as one day of the
sentence imposed. Regarding any portion of the sentence designated
as a fine, the fine shall be credited at an hourly rate equal to
the prevailing federal minimum wage at the time the sentence was
imposed. In the discretion of the court, the sentence credits may
run concurrently or consecutively. Persons sentenced under this
program may be required to provide their own transportation to and
from the work site, lunch and work clothes; or
(4) A day-reporting center program if the program has been
implemented in the sentencing court's jurisdiction or in the area
where the offender resides. For purposes of this subdivision,
"day-reporting center" means a court-operated or court-approved
facility where persons ordered to serve a sentence in such a
facility are required to report under the terms and conditions set
by the court for purposes which include, but are not limited to,
counseling, employment training, alcohol or drug testing or other
medical testing.
(b) In no event may the duration of the alternate sentence
exceed the maximum period of incarceration otherwise allowed.
(c) In imposing a sentence under the provisions of this section, the court shall first make the following findings of fact
and incorporate them into the court's sentencing order:
(1) The person sentenced was not convicted of an offense for
which a mandatory period of confinement is imposed by statute;
(2) In circuit court cases, that the person sentenced is not
a habitual criminal within the meaning of sections eighteen and
nineteen, article eleven, chapter sixty-one of this code;
(3) In circuit court cases, that the offense underlying the
sentence is not a felony offense for which violence or the threat
of violence to the person is an element of the offense;
(4) In circuit court cases, that adequate facilities for the
administration and supervision of alternative sentencing programs
are available through the court's probation officers or the county
sheriff or, in magistrate court cases, that adequate facilities for
the administration and supervision of alternative sentencing
programs are available through the county sheriff; and
(5) That an alternative sentence under provisions of this
article will best serve the interests of justice.
(d) Persons sentenced by the circuit court under the
provisions of this article shall remain under the administrative
custody and supervision of the court's probation officers or the
county sheriff. Persons sentenced by a magistrate shall remain
under the administrative custody and supervision of the county sheriff.
(e) Persons sentenced under the provisions of this section may
be required to pay the costs of their incarceration, including meal
costs, at the discretion of the court.
(f) Persons sentenced under the provisions of this section
remain under the jurisdiction of the court. The court may withdraw
any alternative sentence at any time by order entered with or
without notice and require that the remainder of the sentence be
served in the county jail, regional jail or a state correctional
facility:
Provided, That no alternative sentence directed by the
sentencing judge or magistrate or administered under the
supervision of the sheriff, his or her deputies, a jailer or a
guard shall require the convicted person to perform duties which
would be considered detrimental to the convicted person's health as
attested by a physician.
______
(NOTE: The purpose of this bill is to include clean-up of
public and not-for-profit cemeteries and family cemeteries freely
accessible by the public among the tasks which may be performed as
jail or prison labor or as alternative sentencing.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.)
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