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Engrossed Version House Bill 2329 History

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hb2329 eng
ENGROSSED

H. B. 2329


(By Delegates Ennis, Swartzmiller and G. White)
[Introduced February 14, 2005
; referred to the
Committee on the Judiciary.]




A BILL to amend and reenact §61-11A-4 of the Code of West Virginia, 1931, as amended, relating to authorizing a court to order a defendant to contribute monetarily or through hours of service to a local crime victim's assistance program or juvenile mediation program which meets certain requirements.

Be it enacted by the Legislature of West Virginia:
That §61-11A-4 of the Code of West Virginia, 1931, as amended, be amended and reenacted to read as follows:
ARTICLE 11A. VICTIM PROTECTION ACT OF 1984.
§61-11A-4. Restitution; when ordered.

(a) The court, when sentencing a defendant convicted of a felony or misdemeanor causing physical, psychological or economic injury or loss to a victim, shall order, in addition to or in lieu of any other penalty authorized by law, that the defendant make restitution to any victim of the offense, unless the court finds restitution to be wholly or partially impractical as set forth in this article.
If the court does not order restitution, or orders only partial restitution, under this section, the court shall state on the record the reasons therefor.
(b) The order shall require that such the defendant:
(1) In the case of an offense resulting in damage to, loss of, or destruction of property of a victim of the offense:
(A) Return the property to the owner of the property or someone designated by the owner; or
(B) If return of the property under subparagraph (A) is impossible, impractical or inadequate, pay an amount equal to the greater of: (i) The value of the property on the date of sentencing; or (ii) the value of the property on the date of the damage, loss or destruction less the value (as of the date the property is returned) of any part of the property that is returned;
(2) In the case of an offense resulting in bodily injury to a victim:
(A) Pay an amount equal to the cost of necessary medical and related professional services and devices relating to physical, psychiatric and psychological care, including nonmedical care and treatment rendered in accordance with a method of healing recognized by the law of the place of treatment;
(B) Pay an amount equal to the cost of necessary physical and occupational therapy and rehabilitation; and
(C) Reimburse the victim for income lost by such the victim as a result of such the offense;
(3) In the case of an offense resulting in bodily injury that also results in the death of a victim, pay an amount equal to the cost of necessary funeral and related services; and
(4) In any case, if the victim (or if the victim is deceased, the victim's estate) consents, or if payment is impossible or impractical, make restitution in services in lieu of money, or make restitution to a person or organization designated by the victim or the estate.
(c) If the court decides to order restitution under this section, the court shall, if the victim is deceased, order that the restitution be made to the victim's estate.
(d) The court shall impose an order of restitution to the extent that such the order is as fair as possible to the victim and the imposition of such the order will not unduly complicate or prolong the sentencing process.
(e) The court shall not impose restitution with respect to a loss for which the victim has received or is to receive compensation, except that the court may, in the interest of justice, order restitution to any person who has compensated the victim for such loss to the extent that such the person paid the compensation. An order of restitution shall require that all restitution to victims under such the order be made before any restitution to any other person under such the order is made.
(f) The court may require that such defendant make restitution under this section within a specified period or in specified installments. The end of such the period or the last such installment shall not be later than: (i) The end of the period of probation, if probation is ordered; (ii) five years after the end of the term of imprisonment imposed, if the court does not order probation; and (iii) five years after the date of sentencing in any other case.
If not otherwise provided by the court under this subsection, restitution shall be made immediately.
(g) If such the defendant is placed on probation or paroled under this article, any restitution ordered under this section shall be a condition of such the probation or parole unless the court or parole board finds restitution to be wholly or partially impractical as set forth in this article.
The court may revoke probation and the parole board may revoke parole if the defendant fails to comply with such the order. In determining whether to revoke probation or parole, the court or parole board shall consider the defendant's employment status, earning ability, financial resources, the willfulness of the defendant's failure to pay, and any other special circumstances that may have a bearing on the defendant's ability to pay.
(h) An order of restitution may be enforced by the state or a victim named in the order to receive the restitution in the same manner as a judgment in a civil action.
(i) Notwithstanding any provision of this section to the contrary, the court may order, in addition to an order of restitution pursuant to subsection (a) or in the event that there is no victim or victim's estate to which restitution may be made pursuant to subsection (a), that a defendant be required to contribute monetarily, or through hours of service, to a local crime victim's assistance program or juvenile mediation program which meets the following requirements:
(1) The program is approved by a circuit judge presiding in the judicial circuit; and
(2) The program is a nonprofit organization certified as a corporation in this state, and is governed by a board of directors.



NOTE: The purpose of this bill is to authorize courts to order defendants to contribute monetarily or through hours of service, to local victim's crime assistance programs or juvenile mediation programs which meet certain requirements.

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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