COMMITTEE SUBSTITUTE
FOR
H. B. 2755
(By Delegates Hall, Martin, Paxton, Amores, L. Smith and
Anderson)
(Originating in the Committee on the Judiciary)
[March 27, 2001]
A BILL to amend and reenact section ten, article five, chapter
forty-nine of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, relating to waiver and
transfer of juveniles to the criminal jurisdiction of the
circuit court for second degree arson offenses involving
setting fire to or burning a public building or church; and
defining public building or church.
Be it enacted by the Legislature of West Virginia:
That section ten, article five, chapter forty-nine of the code
of West Virginia, one thousand nine hundred thirty-one, as amended,
be amended and reenacted to read as follows:
ARTICLE 5. JUVENILE PROCEEDINGS.
§49-5-10. W
aiver and transfer of jurisdiction.
(a) Upon written motion of the prosecuting attorney filed at
least eight days prior to the adjudicatory hearing and with
reasonable notice to the juvenile, his or her counsel, and his or
her parents, guardians or custodians, the court shall conduct a hearing to determine if juvenile jurisdiction should or must be
waived and the proceeding transferred to the criminal jurisdiction
of the court. Any motion filed in accordance with this section
shall is to state, with particularity, the grounds for the
requested transfer, including the grounds relied upon as set forth
in subsection (d), (e), (f) or (g) of this section
, and the burden
shall be is upon the state to establish
such the grounds by clear
and convincing evidence. Any hearing held under the provisions of
this section
shall is to be held within seven days of the filing of
the motion for transfer unless it is continued for good cause.
(b) No inquiry relative to admission or denial of the
allegations of the charge or the demand for jury trial may be made
by or before the court until the court has determined whether the
proceeding is to be transferred to criminal jurisdiction.
(c) The court shall transfer a juvenile proceeding to criminal
jurisdiction if a juvenile who has attained the age of fourteen
years makes a demand on the record to be transferred to the
criminal jurisdiction of the court. The case may then be referred
to magistrate or circuit court for further proceedings, subject to
the court's jurisdiction.
(d) The court shall transfer a juvenile proceeding to criminal
jurisdiction if there is probable cause to believe that:
(1) The juvenile is at least fourteen years of age and has
committed the crime of treason under section one, article one,
chapter sixty-one of this code; the crime of murder under sections one, two and three, article two of said chapter; the crime of
robbery involving the use or presenting of firearms or other deadly
weapons under section twelve of said article; the crime of
kidnaping under section fourteen-a of said article; the crime of
first degree arson under section one, article three of said
chapter; or the crime of sexual assault in the first degree under
section three, article eight-b of said chapter; or
(2) The juvenile is at least fourteen years of age and has
committed an offense of violence to the person which would be a
felony if the juvenile
were was an adult:
Provided, That the
juvenile has been previously adjudged delinquent for the commission
of an offense of violence to the person which would be a felony if
the juvenile
were was an adult; or
(3) The juvenile is at least fourteen years of age and has
committed an offense which would be a felony if the juvenile
were
was an adult:
Provided, That the juvenile has been twice
previously adjudged delinquent for the commission of an offense
which would be a felony if the juvenile
were was an adult.
(e) The court may transfer a juvenile proceeding to criminal
jurisdiction if there is probable cause to believe that the
juvenile would otherwise satisfy the provisions of subdivision (1),
subsection (d) of this section, but who is younger than fourteen
years of age.
(f) The court may, upon consideration of the juvenile's mental
and physical condition, maturity, emotional attitude, home or family environment, school experience and similar personal factors,
transfer a juvenile proceeding to criminal jurisdiction if there is
probable cause to believe that the juvenile would otherwise satisfy
the provisions of subdivision (2) or (3), subsection (d) of this
section, but who is younger than fourteen years of age.
(g) The court may, upon consideration of the juvenile's mental
and physical condition, maturity, emotional attitude, home or
family environment, school experience and similar personal factors,
transfer a juvenile proceeding to criminal jurisdiction if there is
probable cause to believe that:
(1) The juvenile, who is at least fourteen years of age, has
committed an offense of violence to a person which would be a
felony if the juvenile
were was an adult; or
(2) The juvenile, who is at least fourteen years of age, has
committed an offense which would be a felony if the juvenile
were
was an adult:
Provided, That the juvenile has been previously
adjudged delinquent for the commission of a crime which would be a
felony if the juvenile
were was an adult; or
(3) The juvenile, who is at least fourteen years of age, used
or presented a firearm or other deadly weapon during the commission
of a felony; or
(4) The juvenile has committed a violation of the provisions
of section four hundred one, article four, chapter sixty-a of this
code which would be a felony if the juvenile
were was an adult
involving the manufacture, delivery or possession with the intent to deliver a narcotic drug. For purposes of this subdivision, the
term "narcotic drug" has the same definition as that set forth in
section one hundred one, article one of said chapter;
or
(5) The juvenile has committed the crime second degree arson
as defined in section two, article three, chapter sixty-one of this
code involving setting fire to or burning a public building or
church. For purposes of this subdivision, the term "public
building" means a building or structure of any nature owned, leased
or occupied by this state, a political subdivision of this state or
a county board of education and currently used for public purposes.
For purposes of this subdivision, the term "church" means a
building or structure of any nature owned, leased or occupied by a
church,
religious sect, society or denomination and currently used
for religious worship or other religious or benevolent purpose, or
as a residence of a minister or other member of clergy.
(h) For purposes of this section, the term "offense of
violence" means an offense which involves the use or threatened use
of physical force against a person.
(i) If, after a hearing, the court directs the transfer of any
juvenile proceeding to criminal jurisdiction, it shall state on the
record the findings of fact and conclusions of law upon which its
decision is based or shall incorporate such findings of fact and
conclusions of law in its order directing transfer.
(j) A juvenile who has been transferred to criminal
jurisdiction pursuant to the provisions of subsection (e), (f) or (g) of this section, by an order of transfer entered after the
first day of July, one thousand nine hundred ninety-seven, shall
have has the right to either directly appeal an order of transfer
to the supreme court of appeals or to appeal such the order of
transfer following a conviction of the offense of transfer. If the
juvenile exercises the right to a direct appeal from an order of
transfer, the notice of intent to appeal and a request for
transcript shall is to be filed within ten days from the date of
the entry of any such order of transfer, and the petition for
appeal shall is to be presented to the supreme court of appeals
within forty-five days from the entry of such the order of
transfer. The provisions of article five, chapter fifty-eight of
this code pertaining to the appeals of judgments in civil actions
shall apply applies to appeals under this chapter except as herein
modified in this section. The court may, within forty-five days of
the entry of the order of transfer, by appropriate order, extend
and reextend the period in which to file the petition for appeal
for such additional time, not to exceed a total exten
sion of
sixty
days, as in the court's opinion may be
necessary for prepara
tion of
the transcript: Provided, That the request for such a transcript
was made by the party seeking appeal within ten days of entry of
such the order of transfer. In the event any such notice of intent
to appeal and request for transcript be timely filed, proceedings
in criminal court shall are to be stayed upon motion of the
defendant pending final action of the supreme court of appeals thereon.