WEST virginia legislature
2020 regular session
Engrossed
Senate Bill 765
By Senators Weld and Woelfel
[Introduced February 13,
2020; referred
to the Committee on the Judiciary]
Be it enacted by the Legislature of West Virginia:
ARTICLE 11. GENERAL PROVISIONS CONCERNING CRIMES.
§61-11-18. Punishment for second or third offense of felony.
(a) For purposes of this section, “qualifying offense” means any offenses or an attempt or conspiracy to commit any of the offenses in the following provisions of this code:
(1) §60A-4-401(i) and §60A-4-401(ii);
(2) §60A-4-406;
(3) §60A-4-409(b)(1), §60A-4-409(2), and §60A-4-409(3);
(4) §60A-4-411;
(5) §60A-4-414;
(6) §60A-4-415;
(7) §60A-4-416(a);
(8) §61-2-1;
(9) §61-2-4;
(10) §61-2-7;
(11) §61-2-9(a);
(12) §61-2-9a(d) and §61-2-9a(e);
(13) §61-2-9b;
(14) §61-2-9d;
(15) §61-2-10;
(16) §61-2-10b(b) and §61-2-10b(c);
(17) Felony provisions of §61-2-10b(d);
(18) §61-2-12;
(19) Felony provisions of §61-2-13;
(20) §61-2-14;
(21) §61-2-14a(a) and §61-2-14a(d);
(22) §61-2-14c;
(23) §61-2-14d(a) and §61-2-14d(b);
(24) §61-2-14f;
(25) §61-2-14h(a), §61-2-14h(b), and §61-2-14h(c);
(26) §61-2-16a(a) and §61-2-16a(b);
(27) Felony provisions of §61-2-16a(c);
(28) §61-2-28(d);
(29) §61-2-29(d) and §61-2-29(e);
(30) §61-2-29a;
(31) §61-3-1;
(32) §61-3-2;
(33) §61-3-3;
(34) §61-3-4;
(35) §61-3-5;
(36) §61-3-6;
(37) §61-3-7;
(38) §61-3-11;
(39) §61-3-27;
(40) §61-3C-14b;
(41) §61-3E-5;
(42) §61-5-17(b), §61-5-17(f), §61-5-17(h), and §61-5-17(i);
(43) §61-5-27;
(44) §61-6-24;
(45) Felony provisions of §61-7-7;
(46) §61-7-12;
(47) §61-7-15;
(48) §61-7-15a;
(49) §61-8-12;
(50) §61-8-19(b);
(51) §61-8B-3;
(52) §61-8B-4;
(53) §61-8B-5;
(54) §61-8B-7;
(55) §61-8B-9;
(56) §61-8B-10;
(57) §61-8C-2;
(58) §61-8C-3;
(59) §61-8C-3a;
(60) §61-8D-2;
(61) §61-8D-2a;
(62) §61-8D-3;
(63) §61-8D-3a;
(64) §61-8D-4;
(65) §61-8D-4a;
(66) §61-8D-5;
(67) §61-8D-6;
(68) §61-10-31;
(69) §61-11-8;
(70) §61-11-8a;
(71) §61-14-2; and
(72) §17C-5-2(b), driving under the influence causing death.
(a) (b) Except
as provided by subsection (b) (c) of this section, when any
person is convicted of an a qualifying offense and is subject to
confinement in a state correctional facility therefor, and it is determined, as
provided in §61-11-19 of this code, that such person had been before convicted
in the United States of a crime punishable by confinement in a penitentiary, the court shall, if the sentence to be imposed is for a
definite term of years, add five years to the time for which the person is or
would be otherwise sentenced. Whenever in such case the court imposes an
indeterminate sentence, the minimum term shall be twice the term of years
otherwise provided for under such sentence.
(b) (c)
Notwithstanding the provisions of subsection (a) or (c) of this section or
any other provision of this code to the contrary, when any person is
convicted of first degree murder or second degree murder or a violation of §61-8B-3
of this code and it is determined, as provided in §61-11-19 of this code, that
such person had been before convicted in this state of first degree murder,
second degree murder, or a violation of section three, §61-8B-3 of this code or
has been so convicted under any law of the United States or any other state for
an offense which has the same elements as any offense described in this
subsection, such person shall be punished by confinement in a state
correctional facility for life and is not eligible for parole.
(c) (d) When it
is determined, as provided in §61-11-19 of this code, that such person shall
have been twice before convicted in the United States of a crime punishable by
confinement in a penitentiary which has the same elements as a qualifying
offense, the person shall be sentenced to be confined imprisonment
in a state correctional facility for life: Provided, That
prior convictions arising from the same transaction or series of transactions
shall be considered a single offense for purposes of this section: Provided,
however, That an offense which would otherwise constitute a qualifying
offense for purposes of this subsection and subsection (b) of this section
shall not be considered if more than 20 years have elapsed between that offense
and the conduct underlying the current charge.
§61-11-19. Procedure in trial of persons for second or third offense.
It shall be the duty of the A prosecuting attorney, when he or she has
knowledge of a former sentence or sentences to the penitentiary of any
person convicted of an offense punishable by confinement in the penitentiary, to
may give information thereof to the court immediately upon conviction and
before sentence. Said court shall, before expiration of the term at which such
person was convicted, cause such person or prisoner to be brought before it,
and upon an information filed by the prosecuting attorney, setting forth the
records of conviction and sentence, or convictions and sentences, as the case
may be, and alleging the identity of the prisoner with the person named in
each, shall require the prisoner to say whether he or she is the same
person or not. If he or she says he or she is not, or remains
silent, his or her plea, or the fact of his or her silence, shall
be entered of record, and a jury shall be impaneled to inquire whether the
prisoner is the same person mentioned in the several records. If the jury finds
that he or she is not the same person, he or she shall be
sentenced upon the charge of which he or she was convicted as provided
by law; but if they find that he or she is the same, or after being duly
cautioned if he or she acknowledged in open court that he or she
is the same person, the court shall sentence him or her to such further
confinement as is prescribed by §61-11-18 of this code on a second or third
conviction as the case may be: Provided, That where the person
is convicted pursuant to a plea agreement the agreement shall address whether
or not the provisions of this section and § 61-11-18 of this code are to be
invoked.
The clerk of such court shall transmit a copy of said
information to the warden of the penitentiary Commissioner of the
Division of Corrections and Rehabilitation, together with the other papers
required by the provisions of §62-8-10 of this
code.
Nothing contained herein shall be construed as repealing the provisions of §62-8-4 of this code, but no proceeding shall be instituted by the warden, as provided therein, if the trial court has determined the fact of former conviction or convictions as provided herein.