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Introduced Version House Bill 2033 History

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hb2033 intr
H. B. 2033


          (By Delegate Manypenny)
          [Introduced February 13, 2013; referred to the
          Committee on the Judiciary then Finance.]




A BILL to amend and reenact §62-11B-4, §62-11B-5, §62-11B-6 §62-11B-7 and §62-11B-9 of the Code of West Virginia, 1931, as amended, all relating to requiring an automatic home confinement sentence for nonviolent misdemeanors, except where it can be demonstrated that home confinement is unwarranted; providing that any crime with a minimum sentence greater than six months is not eligible for home incarceration; requiring persons who are sentenced to home confinement attend a sobriety program ; requiring the offender of any crime involving alcohol, controlled substances or drugs be required to attend a sobriety program once a week; requiring either full-time employment, thirty-six hours a week or more, or twenty hours weekly of community service for each week the offender is on home confinement; providing certain instances where automatic home incarceration is not available; allowing a county commission to use moneys from the special fund to finance community corrections programs; and requiring a participant sentenced to home incarceration be subject to the same procedures involving revocation as would a person on probation.
Be it enacted by the Legislature of West Virginia:
     That §62-11B-4, §62-11B-5, §62-11B-6, §62-11B-7 and §62-11B-9 of the Code of West Virginia, 1931, as amended, be amended and reenacted, all to read as follows:
ARTICLE 11B. HOME INCARCERATION ACT.
§62-11B-4. Home incarceration; period of home incarceration;  applicability.

     (a) As a condition of probation or bail or as an alternative sentence to another form of incarceration for any criminal violation of this code over which a circuit court has jurisdiction, an automatic home incarceration sentence shall be given for nonviolent misdemeanors, except in those cases where the prosecution demonstrates that the offender in question is an ineligible candidate for home incarceration. A circuit court may shall order an offender confined to the offender's home for a period of home incarceration. As an alternative sentence to incarceration in jail for any criminal violation of this code over which a magistrate court has jurisdiction, an automatic home incarceration sentence shall be given for nonviolent misdemeanors, except in those cases where the prosecution demonstrates that the offender in question is an ineligible candidate for home incarceration, or as a condition of bail for a criminal violation of this code over which a magistrate court has jurisdiction to set bail, a magistrate may shall order an offender confined to the offender's home for a period of electronically monitored home incarceration: Provided, That electronic monitoring may not be required in a specific case if a circuit court upon petition thereto finds by order that electronic monitoring is not necessary.
     (b) The period of home incarceration may be continuous or intermittent, as the circuit court or magistrate court orders. However, the aggregate time actually spent in home incarceration may not exceed the term of imprisonment or incarceration prescribed by this code for the offense committed by the offender. An individual may only be on home incarceration for six months continuously. Any crime with a minimum sentence of greater than six months is not eligible for home incarceration to serve as the entirety of the sentence.
     (c) A grant of home incarceration under this article constitutes a waiver of any entitlement to deduction from a sentence for good conduct under the provisions of section twenty-seven, article five, chapter twenty-eight of this code.
     (d) When imposing home incarceration as a condition of bail, a magistrate shall do so consistent with guidelines promulgated by the Supreme Court of Appeals.
§62-11B-5. Requirements for order for home incarceration.
     An order for home incarceration of an offender under section four of this article is to include, but not be limited to, the following:
     (1) A requirement that the offender be confined to the offender's home or a home deemed suitable by the magistrate or judge at all times except when the offender is:
     (A) Working full time, thirty-six hours or more a week, at employment approved by the circuit court or magistrate, or traveling to or from approved employment;
     (B) Unemployed and seeking employment approved for the offender by the circuit court or magistrate: Provided, That those who are unemployed shall complete twenty hours of supervised community service weekly, for the time that they are participating in home confinement. The supervised community service shall be structured through the county's community corrections program and approved by the circuit judge or magistrate;
     (C) Undergoing medical, psychiatric, mental health treatment, counseling or other treatment programs approved for the offender by the circuit court or magistrate;
     (D) Attending an educational institution or a program approved for the offender by the circuit court or magistrate;
     (E) Attending a sobriety program, such as Alcoholics Anonymous, Narcotics Anonymous or a program approved for the offender by the circuit court or magistrate: Provided, That an offender who committed a crime involving alcohol, controlled substances or drugs, or crimes committed under the influence thereof shall attend a program at least once per week;
     (E)(F) Attending a regularly scheduled religious service at a place of worship;
     (F) (G) Participating in a community work release or community service program approved for the offender by the circuit court, in circuit court cases; or
     (G) (H) Engaging in other activities specifically approved for the offender by the circuit court or magistrate.
     (2) Notice to the offender of the penalties which may be imposed if the circuit court or magistrate subsequently finds the offender to have violated the terms and conditions in the order of home incarceration.
     (3) A requirement that the offender abide by a schedule, prepared by the probation officer in circuit court cases, or by the supervisor or sheriff in magistrate court cases, specifically setting forth the times when the offender may be absent from the offender's home and the locations the offender is allowed to be during the scheduled absences.
     (4) A requirement that the offender is not to commit another crime during the period of home incarceration ordered by the circuit court or magistrate.
     (5) A requirement that the offender obtain approval from the probation officer or supervisor or sheriff before the offender changes residence or the schedule described in subdivision (3) of this section.
     (6) A requirement that the offender maintain:
     (A) A working telephone in the offender's home;
     (B) If ordered by the circuit court or as ordered by the magistrate, an electronic monitoring device in the offender's home, or on the offender's person, or both; and
     (C) Electric service in the offender's home if use of a monitoring device is ordered by the circuit court or any time home incarceration is ordered by the magistrate.
     (7) A requirement that the offender pay a home incarceration fee set by the circuit court or magistrate. If a magistrate orders home incarceration for an offender, the magistrate shall follow a fee schedule established by the supervising circuit judge in setting the home incarceration fee. The magistrate or circuit judge shall consider the person's ability to pay in determining the imposition and amount of the fee;
     (8) A requirement that the offender pay a fee authorized by the provisions of section four, article eleven-c of this chapter: Provided, That the magistrate or circuit judge considers the person's ability to pay in determining the imposition and amount of the fee; and
     (9) A requirement that the offender abide by other conditions set by the circuit court or by the magistrate.
§62-11B-6. Circumstances under which home incarceration may not be ordered; exceptions.
     (a) A circuit court or magistrate may not order home incarceration for an offender unless the offender agrees to abide by all of the requirements set forth in the court's order issued under this article.
     (b) A circuit court or magistrate may not order home incarceration for an offender who is being held under a detainer, warrant or process issued by a court of another jurisdiction.
     (c) A magistrate may not order home incarceration for an offender unless electronic monitoring is available and only if the county of the offender's home has an established program of electronic monitoring that is equipped, operated and staffed by the county supervisor or sheriff for the purpose of supervising participants in a home incarceration program: Provided, That electronic monitoring may not be required in a specific case if a circuit court upon petition thereto finds by order that electronic monitoring is not necessary.
     (d) A magistrate may only order home incarceration for an offender convicted of a crime of violence against the person if the offender does not occupy the same home as the victim of the crime.
     (e) Home incarceration is not available as a sentence if the language of a criminal statute expressly prohibits its application.
     (f) Automatic home confinement is not available to violent offenders, felony offenders, offenders guilty of a crime with a minimum sentence greater than six months, or offenders deemed unfit by the magistrate or circuit judge.
_____
(f)(g) Notwithstanding the provisions of subsection (c) of this section, a magistrate may order home incarceration through the imposition of supervision or participation in a community corrections program created pursuant to article eleven-c, chapter sixty-two of this code.
§62-11B-7. Home incarceration fees; special fund.
     All home incarceration fees ordered by the circuit court or a magistrate pursuant to subdivision (7), section five of this article are to be paid to the county sheriff. The county sheriff is to establish a special fund designated the home incarceration services fund, in which the sheriff is to deposit all home incarceration fees collected pursuant to this section. The county commission shall appropriate money from the fund to administer a home incarceration program, including the purchase of electronic monitoring devices and other supervision expenses, and may as necessary supplement the fund with additional appropriations. The county commission may appropriate money from the fund to finance community corrections programs. The county commission may also appropriate any excess money from the fund to defray the costs of housing county inmates or for community corrections programs, if the sheriff or other person designated to administer the fund certifies in writing to the county commission that a surplus exists in the fund at the end of the fiscal year.
§62-11B-9. Violation of order of home incarceration procedures; penalties.
     (a) If at any time during the period of home incarceration there is reasonable cause to believe that a participant in a home incarceration program has violated the terms and conditions of the circuit court's home incarceration order, he or she shall be subject to the procedures and penalties set forth in section ten, article twelve of this chapter.
     (b) If at any time during the period of home incarceration there is reasonable cause to believe that a participant sentenced to home incarceration by the circuit court has violated the terms and conditions of the court's order of home incarceration and said participant's participation was imposed as an automatic sentence or alternative sentence to another form of incarceration, said participant shall be subject to the same procedures involving revocation as would a probationer charged with a violation of the order of home incarceration. Any participant under an order of home incarceration shall be subject to the same penalty or penalties, upon the circuit court's finding of a violation of the order of home incarceration, as he or she could have received at the initial disposition hearing: Provided, That the participant shall receive credit towards any sentence imposed after a finding of violation for the time spent in home incarceration.
     (c) If at any time during the period of home incarceration there is reasonable cause to believe that a participant sentenced to home incarceration by a magistrate has violated the terms and conditions of the magistrate's order of home incarceration as an alternative sentence to incarceration in jail, the supervising authority may arrest the participant upon the obtaining of an order or warrant and take the offender before a magistrate within the county of the offense. The magistrate shall then conduct a prompt and summary hearing on whether the participant's home incarceration should be revoked. If it appears to the satisfaction of the magistrate that any condition of home incarceration has been violated, the magistrate may revoke the home incarceration and order that the sentence of incarceration in jail be executed. Any participant under an order of home incarceration shall be subject to the same penalty or penalties, upon the magistrate's finding of a violation of the order of home incarceration, as the participant could have received at the initial disposition hearing: Provided, That the participant shall receive credit towards any sentence imposed after a finding of violation for the time spent in home incarceration.




     NOTE: The purpose of this bill is to require an automatic home confinement sentence for nonviolent misdemeanors, except where it can be demonstrated that home confinement is unwarranted. The bill provides that any crime with a minimum sentence greater than six months is not eligible for home confinement. The bill requires persons who are sentenced to home confinement attend a sobriety program
. The bill requires the offender of any crime involving alcohol, controlled substances or drugs, or committed under the influence of alcohol, controlled substances or drugs be required to weekly attend a sobriety program . The bill requires either full-time employment, thirty-six hours a week or more, or twenty hours weekly of community service for each week the offender is on home confinement. The bill provides certain instances where automatic home incarceration is not available. The bill allows a county commission to use moneys from the special fund to finance community corrections programs. The bill requires a participant sentenced to home incarceration be subject to the same procedures involving revocation as would a person on probation.

     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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