ENROLLED

COMMITTEE SUBSTITUTE

FOR

H. B. 2277

(By Delegates Douglas, Faircloth, Staton,

Beane and Manuel)


[Passed April 10, 1993; in effect ninety days from passage.]



AN ACT to amend and reenact section one-a, article eleven-a, chapter sixty-two of the code of West Virginia, one thousand nine hundred thirty-one, as amended; to amend and reenact sections four, five, six, seven, nine, ten and eleven, article eleven-b of said chapter; and to further amend said article by adding thereto two new sections, designated sections seven-a and twelve, all relating to permitting magistrates to impose alternative sentences upon convicted offenders; authorizing circuit courts to order home confinement in lieu of jail; authorizing magistrates to order certain offenders confined to home for a period of electronically monitored home confinement as an alternative sentence to incarceration in jail; exception for electronic monitoring requirement in magistrate court cases; requirements for home confinement; specifying sole offenders for which offenders may not be sentenced to home confinement; home confinement fees; appointment and
authority of home confinement supervisors; violations of terms and conditions of home confinement order and procedures for revocation of home confinement; penalties when home confinement revoked; information to be provided to certain law-enforcement agencies regarding offenders sentenced to home confinement; and vesting circuit judges with the authority of the board of probation and parole in certain circumstances.
 Be it enacted by the Legislature of West Virginia:
That section one-a, article eleven-a, chapter sixty-two of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted; that sections four, five, six, seven, nine, ten and eleven, article eleven-b of said chapter be amended and reenacted; and that said article eleven-b be further amended by adding thereto two new sections, designated sections seven-a and twelve, all to read as follows:
ARTICLE 11A. RELEASE FOR WORK AND OTHER PURPOSES.
§62-11A-1a. Other sentencing alternatives.
(a) Any person who has been convicted in a circuit court or in a magistrate court under any criminal provision of this code of a misdemeanor or felony, which is punishable by confinement in the county jail, may, in the discretion of the sentencing judge or magistrate, as an alternative to the sentence imposed by statute for such crime, be sentenced under one of the following programs:
(1) The weekend jail program under which persons would be required to spend weekends or other days normally off from work in jail;
(2) The work program under which sentenced persons would be required to spend the first two or more days of their sentence in jail and then, in the discretion of the court, would be assigned to a county agency to perform labor within the jail, or in and upon the buildings, grounds, institutions, bridges, roads, including orphaned roads used by the general public, and public works within the county. Eight hours of such labor shall be credited as one day of the sentence imposed. Persons sentenced under this program may be required to provide their own transportation to and from the work site, lunch and work clothes; or
(3) The community service program under which persons sentenced would spend no time in jail but would be sentenced to a number of hours or days of community service work with tax supported agencies. Eight hours of service work shall be credited as one day of the sentence imposed. Persons sentenced under this program may be required to provide their own transportation to and from the work site, lunch and work clothes.
(b) In no event may the duration of the alternate sentence exceed the maximum period of incarceration otherwise allowed.
(c) In imposing a sentence under the provisions of this section, the court shall first make the following findings of fact and incorporate them into the court's sentencing order:
(1) The person sentenced was not convicted of an offense for which a mandatory period of confinement is imposed by statute;
(2) In circuit court cases, that the person sentenced is not a habitual criminal within the meaning of sections eighteen and nineteen, article eleven, chapter sixty-one of this code;
(3) In circuit court cases, that adequate facilities for the administration and supervision of alternative sentencing programs are available through the court's probation officers or the county sheriff or, in magistrate court cases, that adequate facilities for the administration and supervision of alternative sentencing programs are available through the county sheriff; and
(4) That an alternative sentence under provisions of this article will best serve the interests of justice.
(d) Persons sentenced by the circuit court under the provisions of this article shall remain under the administrative custody and supervision of the court's probation officers or the county sheriff. Persons sentenced by a magistrate shall remain under the administrative custody and supervision of the county sheriff.
(e) Persons sentenced under the provisions of this section may be required to pay the costs of their incarceration, including meal costs, at the discretion of the court.
(f) Persons sentenced under the provisions of this section remain under the jurisdiction of the court. The court may withdraw any alternative sentence at any time by order entered with or without notice and require that the remainder of the sentence be served in the county jail: Provided, That no alternative sentence directed by the sentencing judge or magistrate or administered under the supervision of the sheriff, his deputies, a jailer or a guard, shall require the convicted person to perform duties which would be considered detrimental to the convicted person's health as attested by a physician.
ARTICLE 11B. HOME CONFINEMENT ACT.

§62-11B-4. Home confinement; period of home confinement; applicability.

(a) As a condition of probation or bail or as an alternative sentence to another form of incarceration for any criminal violation of this code over which a circuit court has jurisdiction, a circuit court may order an offender confined to the offender's home for a period of home confinement. As an alternative sentence to incarceration in jail, a magistrate may order an adult offender convicted of any criminal violation under this code over which a magistrate court has jurisdiction, be confined to the offender's home for a period of electronically monitored home confinement: Provided, That electronic monitoring may not be required in a specific case if a circuit court upon petition thereto finds by order that electronic monitoring is not necessary.
(b) The period of home confinement may be continuous or intermittent, as the circuit court orders, or continuous except as provided by section five of this article if ordered by a magistrate. However, the aggregate time actually spent in home confinement may not exceed the term of imprisonment or incarceration prescribed by this code for the offense committed by the offender.
(c) A grant of home confinement under this article constitutes a waiver of any entitlement to deduction from a sentence for good conduct under the provisions of section twenty-seven, article five, chapter twenty-eight of this code.
§62-11B-5. Requirements for order for home confinement.

An order for home confinement of an offender under sectionfour of this article shall include, but not be limited to, the following:
(1) A requirement that the offender be confined to the offender's home at all times except when the offender is:
(A) Working at employment approved by the circuit court or magistrate, or traveling to or from approved employment;
(B) Unemployed and seeking employment approved for the offender by the circuit court or magistrate;
(C) Undergoing medical, psychiatric, mental health treatment, counseling or other treatment programs approved for the offender by the circuit court or magistrate;
(D) Attending an educational institution or a program approved for the offender by the circuit court or magistrate;
(E) Attending a regularly scheduled religious service at a place of worship;
(F) Participating in a community work release or community service program approved for the offender by the circuit court;, in circuit court cases; or
(G) Engaging in other activities specifically approved for the offender by the circuit court or magistrate.
(2) Notice to the offender of the penalties which may be imposed if the circuit court or magistrate subsequently finds the offender to have violated the terms and conditions in the order of home detention.
(3) A requirement that the offender abide by a schedule, prepared by the probation officer in circuit court cases; or by the supervisor or sheriff in magistrate court cases, specifically setting forth the times when the offender may be absent from theoffender's home and the locations the offender is allowed to be during the scheduled absences.
(4) A requirement that the offender is not to commit another crime during the period of home confinement ordered by the circuit court or magistrate.
(5) A requirement that the offender obtain approval from the probation officer or supervisor or sheriff before the offender changes residence or the schedule described in subdivision (3) of this section.
(6) A requirement that the offender maintain:
(A) A working telephone in the offender's home;
(B) If ordered by the circuit court or as ordered by the magistrate, an electronic monitoring device in the offender's home, or on the offender's person, or both; and
(C) Electric service in the offender's home if use of a monitoring device is ordered by the circuit court or anytime home confinement is ordered by the magistrate.
(7) A requirement that the offender pay a home confinement fee set by the circuit court or magistrate. If a magistrate orders home confinement for an offender, the magistrate shall follow a fee schedule established by the supervising circuit judge in setting the home confinement fee.
(8) A requirement that the offender abide by other conditions set by the circuit court or by the magistrate.
§62-11B-6. Circumstances under which home confinement may not be ordered.

(a) A circuit court or magistrate may not order home confinement for an offender unless the offender agrees to abideby all of the requirements set forth in the court's order issued under this article.
(b) A circuit court or magistrate may not order home confinement for an offender who is being held under a detainer, warrant or process issued by a court of another jurisdiction.
(c) A magistrate may order home confinement for an offender only with electronic monitoring and only if the county of the offender's home has an established program of electronic monitoring that is equipped, operated and staffed by the county supervisor or sheriff for the purpose of supervising participants in a home confinement program: Provided, That electronic monitoring may not be required in a specific case if a circuit court upon petition thereto finds by order that electronic such monitoring is not necessary.
(d) A magistrate may not order home confinement for an offender convicted of a crime of violence against the person.
§62-11B-7. Home confinement fees; special fund.

All home detention fees ordered by the circuit court shall be paid to the circuit clerk, who shall monthly remit the fees to the sheriff. All home detention fees ordered by a magistrate shall be paid to the magistrate court clerk, who shall monthly remit the fees to the county sheriff. The county sheriff shall establish a special fund designated the home confinement services fund, in which the sheriff shall deposit all home confinement fees remitted by the clerks. The county commission shall appropriate money from the fund to administer a home confinement program, including the purchase of electronic monitoring devices and other supervision expenses, and may as necessary supplementthe fund with additional appropriations.
§62-11B-7a. Employment by county commission of home confinement supervisors; authority of supervisors.

The county commission may employ one or more persons with the approval of the circuit court and who shall be subject to the supervision of the sheriff as a home confinement supervisor or may designate the county sheriff to supervise offenders ordered to undergo home confinement and to administer the county's home confinement program. Any person so supervising shall have authority, equivalent to that granted to a probation officer pursuant to section ten, article twelve of this chapter, to arrest a home confinement participant when reasonable cause exists to believe that such participant has violated the conditions of his or her home detention. Unless otherwise specified, the use of the term "supervisor" in this article shall refer to a home confinement supervisor.
§62-11B-9. Violation of order of home confinement; procedures; penalties.

(a) If at any time during the period of home detention there is reasonable cause to believe that a participant in a home confinement program has violated the terms and conditions of the circuit court's home confinement order, he or she shall be subject to the procedures and penalties set forth in section ten, article twelve of this chapter.
(b) If at any time during the period of home confinement there is reasonable cause to believe that a participant sentenced to home confinement by the circuit court has violated the terms and conditions of the court's order of home confinement and saidparticipant's participation was imposed as an alternative sentence to another form of incarceration, said participant shall be subject to the same procedures involving revocation as would a probationer charged with a violation of the order of home confinement. Any participant under an order of home confinement shall be subject to the same penalty or penalties, upon the circuit court's finding of a violation of the order of home confinement, as he or she could have received at the initial disposition hearing: Provided, That the participant shall receive credit towards any sentence imposed after a finding of violation for the time spent in home confinement.
(c) If at any time during the period of home confinement there is reasonable cause to believe that a participant sentenced to home confinement by a magistrate has violated the terms and conditions of the magistrate's order of home confinement as an alternative sentence to incarceration in jail, the supervising authority may arrest the participant upon the obtaining of an order or warrant and take the offender before a magistrate within the county of the offense. The magistrate shall then conduct a prompt and summary hearing on whether the participant's home confinement should be revoked. If it appears to the satisfaction of the magistrate that any condition of home confinement has been violated, the magistrate may revoke the home confinement and order that the sentence of incarceration be executed. Any participant under an order of home confinement shall be subject to the same penalty or penalties, upon the magistrate's finding of a violation of the order of home confinement, as the participant could have received at the initial dispositionhearing: Provided, That the participant shall receive credit towards any sentence imposed after a finding of violation for the time spent in home confinement.
§62-11B-10. Information to be provided law-enforcement agencies.

A probation department charged by a circuit court or a supervisor or sheriff charged by a magistrate with supervision of offenders ordered to undergo home confinement shall provide all law-enforcement agencies having jurisdiction in the place where the probation department or the office of the supervisor or sheriff is located with a list of offenders under home confinement supervised by the probation department, supervisor or sheriff. The list must include the following information about each offender:
(1) The offender's name, any known aliases, and the location of the offender's home confinement;
(2) The crime for which the offender was convicted;
(3) The date the offender's home confinement expires; and
(4) The name, address and telephone number of the offender's supervising probation officer or supervisor, as the case may be, for home confinement.
§62-11B-11. Provisions of article not exclusive; discretion of the circuit court.

The provisions of this article may be applied at the discretion of the circuit or magistrate court as an alternate means of confinement but shall not be considered an exclusive means of alternative sentencing.
§62-11B-12. Supervision of home confinement by circuit court.

Notwithstanding any provision of this code to the contrary,in any case where a person has been ordered to home confinement where that person is not in the custody or control of the division of corrections, the circuit court shall have the authority of the board of probation and parole regarding the release, early release, or release on parole of the person.