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Committee Substitute House Bill 2755 History

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Key: Green = existing Code. Red = new code to be enacted
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.
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