H. B. 3179
(By Delegates Webster, DeLong, Staggers, Caputo, Perry and Long)
[Introduced January 9, 2008; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact §49-5-8 of the Code of West Virginia,
1931, as amended, and to amend and reenact §49-5-10 of said
code, all relating to unlawful possession of deadly weapons
by a minor.
Be it enacted by the Legislature of West Virginia:
That §49-5-8 of the Code of West Virginia, 1931, as amended,
be amended and reenacted; and that §49-5-10 of said code be amended
and reenacted, all to read as follows:
ARTICLE 5. JUVENILE PROCEEDINGS.
§49-5-8. Taking a juvenile into custody.
(a) In proceedings formally instituted by the filing of a
juvenile petition, the circuit court, a juvenile referee or a
magistrate may issue an order directing that a juvenile be taken
into custody before adjudication only upon a showing of probable
cause to believe that one of the following conditions exist: (1) The petition shows that grounds exist for the arrest of an adult in
identical circumstances;(2) the health, safety and welfare of the
juvenile demand such custody; (3) the juvenile is a fugitive from
a lawful custody or commitment order of a juvenile court;
(4) the
juvenile has violated section eight, article seven, chapter sixty-
one of this code, or
(4)(5) the juvenile is alleged to be a
juvenile delinquent with a record of willful failure to appear at
juvenile proceedings and custody is necessary to assure his or her
presence before the court. A detention hearing pursuant to section
eight-a of this article shall be held without delay by the judge,
juvenile referee or magistrate authorized to conduct such hearings
without unnecessary delay and in no event may any delay exceed the
next day.
(b) Absent a court order, a juvenile may be taken into custody
by a law-enforcement official only if one of the following
conditions exist: (1) Grounds exist for the arrest of an adult in
identical circumstances; (2) emergency conditions exist which, in
the judgment of the officer pose imminent danger to the health,
safety and welfare of the juvenile; (3) the official has reasonable
grounds to believe that the juvenile has left the care of his or
her parents, guardian or custodian without the consent of such
person, and the health, safety and welfare of the juvenile is
endangered;(4) the juvenile is a fugitive from a lawful custody or
commitment order of a juvenile court; (5) the official has reasonable grounds to believe the juvenile to have been driving a
motor vehicle with any amount of alcohol in his or her blood;
(6)
there is probable cause to believe the juvenile has violated
section eight, article seven, chapter sixty-one of this code, or
(6)
(7) the juvenile is a named respondent in an emergency protective
order issued pursuant to section four hundred three, article
twenty-seven, chapter forty-eight of this code and the individual
filing the emergency protective order is the juvenile's parent,
guardian, or custodian or other person with whom the juvenile
resides.
(c) Upon taking a juvenile into custody, with or without a
court order, the official shall:
(1) Immediately notify the juvenile's parent, guardian,
custodian or, if the parent, guardian or custodian cannot be
located, a close relative;
(2) Release the juvenile into the custody of his or her
parent, guardian or custodian unless:
(A) Circumstances present an immediate threat of serious
bodily harm to the juvenile if released;
(B) No responsible adult can be found into whose custody the
juvenile can be delivered:
Provided, That each day the juvenile is
detained, a written record must be made of all attempts to locate
such a responsible adult;
(C) There is probable cause to believe the juvenile has violated section eight, article seven, chapter sixty-one of this
code, or
(C) (D) The juvenile has been taken into custody for an
alleged act of delinquency for which secure detention is
permissible.
(3) If the juvenile is an alleged status offender or has ben
taken into custody pursuant to subdivision
(6) (7) of subsection
(b), immediately notify the Department of Health and Human
Resources, and, if the circumstances of either paragraph (A) or
(B), subdivision (2) of this subsection exist and the requirements
therein are met, the official may detain the juvenile, but only
in a nonsecure or staff-secure facility;
(4) Take the juvenile without unnecessary delay before a
juvenile referee or judge of the circuit court for a detention
hearing pursuant to section eight-a of this article:
Provided, That
if no judge or juvenile referee is then available in the county,
the official shall take the juvenile without unnecessary delay
before any magistrate then available in the county for the sole
purpose of conducting such a detention hearing. In no event may
any delay in presenting the juvenile for a detention hearing exceed
the next day after he or she is taken into custody.
(d) In the event that a juvenile is delivered into the custody
of a sheriff or director of a detention facility, the sheriff or
director shall immediately notify the court or juvenile referee. The sheriff or director shall immediately provide to every juvenile
who is delivered into his or her custody a written statement
explaining the juvenile's right to a prompt detention hearing, his
or her right to counsel, including appointed counsel if he or she
cannot afford counsel, and his or her privilege against self-
incrimination. In all cases when a juvenile is delivered into a
sheriff's or detention center director's custody, that official
shall release the juvenile to his or her parent, guardian or
custodian by the end of the next day, unless the juvenile has been
placed in detention
in accordance with subsections (a)(4) or
(b)(6), above, or the juvenile has been placed in detention after
hearing conducted pursuant to section eight-a of this article.
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 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 is upon the state to establish the grounds by clear and convincing
evidence. Any hearing held under the provisions of this section 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
possession of a deadly weapon under section eight, article seven,
chapter sixty-one of this code;
the crime of kidnapping 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 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 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 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 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 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 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 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 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 of 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 used at the time of the alleged
offense 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 used at the time of the alleged offense 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 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, has the right to
either directly appeal an order of transfer to the supreme court of
appeals or to appeal 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 is to be filed within ten days
from the date of the entry of any such order of transfer, and the
petition for appeal is to be presented to the supreme court of
appeals within forty-five days from the entry of the order of
transfer. The provisions of article five, chapter fifty-eight of
this code pertaining to the appeals of judgments in civil actions
applies to appeals under this chapter except as 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 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 a transcript was made by the party
seeking appeal within ten days of entry of the order of transfer.
In the event any notice of intent to appeal and request for
transcript be timely filed, proceedings in criminal court are to be
stayed upon motion of the defendant pending final action of the
supreme court of appeals.
NOTE: The purpose of this bill is to permit the presiding
officer of a juvenile proceeding to order a juvenile taken into
custody or a law-enforcement official to take a juvenile into
custody when there is probable cause to believe that juvenile has
illegally possessed a deadly weapon, and to permit waiver and
transfer of jurisdiction from juvenile proceeding to criminal
jurisdiction if there is probable cause to believe that juvenile
has illegally possessed a deadly weapon.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.