H. B. 2277
(By Delegates Douglas, Faircloth, Staton,
Beane and Manuel)
[Introduced February 25, 1993; referred to the
Committee on the Judiciary.]
A BILL 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 allowing
magistrates to use alternative sentences for convicted
offenders; authorizing magistrates to sentence certain
offenders to home detention; requirements for home
detention; specifying circumstances in which offenders may
not be sentenced to home detention; home detention fees;
appointment and authority of home detention supervisors;
procedures for revocation of home detention; penalties when
home detention revoked; information to be provided to
certain law-enforcement agencies regarding offenders
sentenced to home detention; 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 of
record or in a magistrate court under any criminal provision of
this code of a misdemeanor or felony, which may be 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 judge, 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) 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) 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 the case of magistrates, 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 confinement, 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 DETENTION ACT.
§62-11B-4. Home detention; period of home detention;
applicability.
(a) As a condition of probation or as an alternative
sentence to another form of incarceration, a circuit court may
order an offender confined to the offender's home for a period of
home detention. As an alternative sentence to incarceration in
jail, a magistrate may order an adult offender confined to the
offender's home for a period of home detention.
(b) The period of home detention may be continuous or
intermittent, as the circuit court orders, or continuous if
ordered by a magistrate. However, the aggregate time actually
spent in home detention 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 detention 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 and it constitutes a
waiver of any eligibility for parole under section thirteen,
article twelve, chapter sixty-two of this code for any time in
which home detention is in effect.
§62-11B-5. Requirements for order for home detention.
An order for home detention of an offender under section
four 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;
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 or supervisor, specifically
setting forth the times when the offender may be absent from the
offender'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 anothercrime during the period of home detention ordered by the circuit
court or magistrate.
(5) A requirement that the offender obtain approval from the
probation officer or supervisor 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, a 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 magistrate.
(7) A requirement that the offender pay a home detention fee
set by the circuit court or magistrate. If a magistrate orders
home detention for an offender, the magistrate shall follow a fee
schedule established by the supervising circuit judge in setting
the home detention fee.
(8) A requirement that the offender abide by other
conditions of probation set by the circuit court.
§62-11B-6. Circumstances under which home detention may not be
ordered.
(a) A circuit court or magistrate may not order home
detention for an offender unless the offender agrees to abide by
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
detention for an offender who is being held under a detainer,
warrant or process issued by a court of another jurisdiction.
(c) A magistrate may not order home detention for an
offender convicted of any offense that carries a mandatory prison
or jail sentence.
(d) A magistrate may not order home detention for an
offender without 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 for the purpose of supervising participants in a home
detention program.
(e) A magistrate may not order home detention for an
offender convicted of a violent offense, including, but not
limited to, any offense involving domestic violence.
§62-11B-7. Home detention fees; special fund.
All home detention fees ordered by the circuit court shall
be deposited with the circuit clerk who shall deposit the fees
into the county sheriff's special adult or juvenile probation
services fund, which fund is hereby mandated. All home detention
fees ordered by a magistrate shall be deposited with the
magistrate court clerk who shall deposit the fees into the county
sheriff's special adult or juvenile probation services fund. The
county commission shall appropriate money from the fund to
administer a home detention program, including the purchase of
monitoring devices and other supervision expenses, and may asnecessary supplement the fund with additional appropriations.
§62-11B-7a. Employment by county commission of home detention
supervisors; authority of supervisors.
The county commission may employ one or more persons with
the approval of the circuit court and who shall come under and be
subject to the supervision of said court as a home detention
supervisor to supervise offenders ordered to undergo home
detention and to administer the county's home detention program.
Any person so employed shall have authority, equivalent to that
granted to a probation officer pursuant to section ten, article
twelve of this chapter, to arrest a home detention 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 detention supervisor.
§62-11B-9. Violation of order of home confinement; procedures;
penalties.
(a) If at any time during the period of home detention there
shall be reasonable cause to believe that a participant in a home
detention 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 detention there
shall be reasonable cause to believe that a participant sentenced
to home detention by the circuit court has violated the terms andconditions of the court's order of home detention and said
participant'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
detention. Any participant under an order of home detention
shall be subject to the same penalty or penalties, upon the
circuit court's finding of a violation of the order of home
detention, 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 detention there
shall be reasonable cause to believe that a participant sentenced
to home detention by a magistrate has violated the terms and
conditions of the magistrate's order of home detention as an
alternative sentence to incarceration in jail, the supervisor may
arrest the participant with or without an order or warrant. The
magistrate who placed the participant on home detention, or any
other magistrate within the county of the offender's home shall
then conduct a prompt and summary hearing on whether the
participant's home detention should be revoked. If it appears to
the satisfaction of the magistrate that any condition of home
detention has been violated, the magistrate may revoke the home
detention and impose sentence, and order that sentence be
executed. Any participant under an order of home detention shallbe subject to the same penalty or penalties, upon the
magistrate's finding of a violation of the order of home
detention, as the participant 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.
§62-11B-10. Information to be provided law-enforcement agencies.
A probation department and supervisors charged by a circuit
court or a magistrate with supervision of offenders ordered to
undergo home detention shall provide all law-enforcement agencies
having jurisdiction in the place where the probation department
or the office of the supervisor is located with a list of
offenders under home detention supervised by the probation
department or supervisor. 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 detention;
(2) The crime for which the offender was convicted;
(3) The date the offender's home detention 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 detention.
§62-11B-11. Provisions of article not exclusive; discretion of
the circuit court.
The provisions of this article are not to be considered
exclusive nor do they supersede existing statutes relating to thedetention of adult or juvenile offenders. The provisions of this
article may be applied at the discretion of the trial circuit
court as an alternate means of detention.
§62-11B-12. Supervision of home detention by circuit court.
Notwithstanding any provision of this code to the contrary,
in any case where a person has been ordered to home detention
where that person is not in the custody or control of the
division of corrections, the circuit judge shall have the
authority of the board of probation and parole regarding the
release, early release, or release on parole of the person.
NOTE: The purpose of this bill is to allow magistrates to
sentence people convicted of misdemeanor offenses to home
confinement or other supervised alternatives to jail.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.
§§62-11b-7a and 12 are new; therefore, strike-throughs and
underscoring have been omitted.