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Introduced Version House Bill 2756 History

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Key: Green = existing Code. Red = new code to be enacted
H. B. 2756


(By Delegates Longstreth and Barker)

[Introduced February 23, 2009 ; referred to the

Committee on the Judiciary.]





A BILL to amend and reenact §62-12-6 and §62-12-26 of the Code of West Virginia, 1931, as amended, all relating to granting probation officers the authority to arrest persons who violate his or her conditions of supervised release; eliminating the authority of probation officers to collect moneys; eliminating the requirement that probation officers post bond; and providing that an additional term of supervised release extends beyond the expiration of the term of supervised release for any period necessary for adjudication in regards to delay revocations.

Be it enacted by the Legislature of West Virginia:

That §62-12-6 and §62-12-26 of the Code of West Virginia, 1931, as amended, be amended and reenacted, all to read as follows:

ARTICLE 12. PROBATION AND PAROLE.

§62-12-6. Powers and duties of probation officers.

(a) Each probation officer shall investigate all cases referred to him or her for investigation by the court and shall report in writing thereon He on each case. The probation officer shall furnish to each person released on probation under his or her supervision a written statement of the probationer's conditions of his or her probation together with a copy of the rules and regulations prescribed by the court for the supervision of its probationers. He The probation officer shall keep himself stay informed concerning the conduct and condition of those the probationers under his or her supervision and shall report thereon on the conduct and condition or each probationer in writing as often as the court may require requires. He or she shall use all practicable and suitable methods to aid and encourage them and to bring about improvement in their the probationer to improve his or her conduct and condition. He The probation officer shall keep maintain detailed records of his or her work and shall keep accurate and complete accounts of, and give receipts for, all money collected from persons under his supervision and shall pay over the money to such person as the court may designate. He shall give bond with good security, to be approved by the court, in a penalty of not less than one thousand nor more than three thousand dollars, as the court may determine. He shall also perform such any other duties as the court may require required by the court. He The probation officer shall have authority, with or without an order or
warrant, to arrest any probationer or person on supervised release.
(b) Notwithstanding any provision of this code to the contrary:

(1) Any probation officer appointed on or after July 1, 2002, may carry handguns in the course of their his or her official duties after meeting specialized qualifications established by the Governor's Committee on Crime, Delinquency and Correction, which qualifications shall include the successful completion of handgun training, including a minimum of four hours' training in handgun safety and comparable to the handgun training provided to law-enforcement officers by the West Virginia State Police.

(2) Any person employed as a probation officer on June 30, 2002, is exempt from the licensure requirements set forth in article seven, chapter sixty-one of this code until June 30, 2004, while employed as a probation officer: Provided, That after June 30, 2004, such probation officers may only carry handguns in the course of their official duties after meeting the specialized qualifications set forth in subdivision (1) of this subsection.

(3) Nothing in this subsection shall be construed to include probation officers within the meaning of law-enforcement officers as defined in section one, article twenty-nine, chapter thirty of this code.

§62-12-26. Extended supervision for certain sex offenders; sentencing; conditions; supervision provisions; supervision fee.

(a) Notwithstanding any other provision of this code to the contrary, any defendant convicted after the effective date of this section of a violation of section twelve, article eight, chapter sixty-one of this code or a felony violation of the provisions of article eight-b, eight-c or eight-d of said chapter shall, as part of the sentence imposed at final disposition, be required to serve, in addition to any other penalty or condition imposed by the court, a period of supervised release of up to fifty years: Provided, That the period of supervised release imposed by the court pursuant to this section for a defendant convicted after the effective date of this section as amended and reenacted during the first extraordinary session of the Legislature, 2006, of a violation of sections three or seven, article eight-b, chapter sixty-one of this code and sentenced pursuant to section nine-a, article eight-b, chapter sixty-one of this code, shall be no less than ten years: Provided, however, That a defendant designated after the effective date of this section as amended and reenacted during the first extraordinary session of the Legislature, 2006, as a sexually violent predator pursuant to the provisions of section two-a, article twelve, chapter fifteen of this code shall be subject, in addition to any other penalty or condition imposed by the court, to supervised release for life: Provided further, That, pursuant to the provisions of subsection (g) of this section, a court may modify, terminate or revoke any term of supervised release imposed pursuant to subsection (a) of this section.
(b) Any person required to be on supervised release for a minimum term of ten years or for life pursuant to the provisos of subsection (a) also shall be further prohibited from:
(1) Establishing a residence or accepting employment within one thousand feet of a school or child care facility or within one thousand feet of the residence of a victim or victims of any sexually violent offenses for which the person was convicted;
(2) Establishing a residence or any other living accommodation in a household in which a child under sixteen resides if the person has been convicted of a sexually violent offense against a child, unless the person is one of the following:
(i) The child's parent;
(ii) The child's grandparent; or
(iii) The child's stepparent and the person was the stepparent of the child prior to being convicted of a sexually violent offense, the person's parental rights to any children in the home have not been terminated, the child is not a victim of a sexually violent offense perpetrated by the person, and the court determines that the person is not likely to cause harm to the child or children with whom such person will reside: Provided, That nothing in this subsection shall preclude a court from imposing residency or employment restrictions as a condition of supervised release on defendants other than those subject to the provision of this subsection. (c) The period of supervised release imposed by the provisions of this section shall begin upon the expiration of any period of probation, the expiration of any sentence of incarceration or the expiration of any period of parole supervision imposed or required of the person so convicted, whichever expires later.
(d) Any person sentenced to a period of supervised release pursuant to the provisions of this section shall be supervised by the probation office of the sentencing court or by the community corrections program established in said circuit unless jurisdiction is transferred elsewhere by order of the sentencing court.
(e) A defendant sentenced to a period of supervised release shall be subject to any or all of the conditions applicable to a person placed upon probation pursuant to the provisions of section nine, article twelve, chapter sixty-one sixty-two of this code: Provided, That any defendant sentenced to a period of supervised release pursuant to this section shall be required to participate in appropriate offender treatment programs or counseling during the period of supervised release unless the court deems such the offender treatment programs or counseling to no longer be appropriate or necessary and makes express findings in support thereof.
Within ninety days of the effective date of this section as amended and reenacted during the first extraordinary session of the Legislature, 2006, the Secretary of the Department of Health and Human Resources shall propose rules and emergency rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code establishing qualifications for sex offender treatment programs and counselors based on accepted treatment protocols among licensed mental health professionals.
(f) The sentencing court may, based upon defendant's ability to pay, impose a supervision fee to offset the cost of supervision. Said fee shall not exceed $50 per month. Said fee may be modified periodically based upon the defendant's ability to pay.
(g) Modification of conditions or revocation. -- The court may:
(1) Terminate a term of supervised release and discharge the defendant released at any time after the expiration of two years of supervised release, pursuant to the provisions of the West Virginia Rules of Criminal Procedure relating to the modification of probation, if it is satisfied that such action is warranted by the conduct of the defendant released and the interests of justice;
(2) Extend a period of supervised release if less than the maximum authorized period was previously imposed or modify, reduce or enlarge the conditions of supervised release, at any time prior to the expiration or termination of the term of supervised release, consistent with the provisions of the West Virginia Rules of Criminal Procedure relating to the modification of probation and the provisions applicable to the initial setting of the terms and conditions of post-release supervision;
(3) Revoke a term of supervised release and require the defendant to serve in prison all or part of the term of supervised release without credit for time previously served on supervised release if the court, pursuant to the West Virginia Rules of Criminal Procedure applicable to revocation of probation, finds by clear and convincing evidence that the defendant violated a condition of supervised release, except that a defendant whose term is revoked under this subdivision may not be required to serve more than the period of supervised release;
(4) Order the defendant to remain at his or her place of residence during nonworking hours and, if the court so directs, to have compliance monitored by telephone or electronic signaling devices, except that an order under this paragraph may be imposed only as an alternative to incarceration.
(h) Written statement of conditions. -- The court shall direct that the probation officer provide the defendant with a written statement at his her sentencing hearing that sets forth all the conditions to which the term of supervised release is subject and that it is sufficiently clear and specific to serve as a guide for the defendant's conduct and for such supervision as is required.
(i) Supervised release following revocation. -- When a term of supervised release is revoked and the defendant is required to serve a term of imprisonment that is less than the maximum term of imprisonment supervised release authorized under subsection (a) of this section, the court may include a requirement that the defendant be placed on a term of supervised release after imprisonment. The length of such term of supervised release shall not exceed the term of supervised release authorized by this section less any term of imprisonment that was imposed upon revocation of supervised release.
(j) Delayed revocation. -- The power of the court to revoke a term of supervised release for violation of a condition of supervised release and to order the defendant to serve a term of imprisonment and, subject to the limitations in subsection (h) (i) of this section, a further term of supervised release extends beyond the expiration of the term of supervised release for any period necessary for the adjudication of matters arising before its expiration if, before its expiration, a warrant or summons has been issued on the basis of an allegation of such a violation.
NOTE: The purpose of this bill is to clarify that probation officers have the authority to arrest both probationers and persons on supervised release; eliminating the authority of probation officers to collect moneys; eliminating the requirement that probation officers post bond; and adding language from the federal statute that was accidently omitted when the section was reenacted by the Child Protection Act of 2006 regarding delayed revocation and providing technical cleanup.

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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