COMMITTEE SUBSTITUTE
FOR
H. B. 2277
(By Delegates Douglas, Faircloth, Staton,
Beane and Manuel)
(Originating in the House Committee on the Judiciary)
[April 1, 1993]
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 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; requirements for home
confinement; specifying circumstances in 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 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 court, would beassigned 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 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 That adequate facilities
for the administration and supervision of alternative sentencing
programs are available through the court's probation officers orthe 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 confinement
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 DETENTION CONFINEMENT ACT.
§62-11B-4. Home detention confinement; period of home detention
confinement; applicability.
(a) As a condition of probation or bail 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 confinement. 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 electronically
monitored home confinement.
(b) The period of home detention 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 detention 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 detention
confinement.
An order for home detention confinement 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 theoffender 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 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 another
crime during the period of home detention 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 offenderchanges 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 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 detention
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 of probation set by the circuit court or by the
magistrate.
§62-11B-6. Circumstances under which home detention confinement
may not be ordered.
(a) A circuit court or magistrate may not order home
detention confinement 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 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.
(d) A magistrate may not order home confinement for an
offender convicted of a violent offense, including, but not
limited to, any offense involving domestic violence.
§62-11B-7. Home detention confinement fees; special fund.
All home detention fees ordered by the circuit court shall
be deposited with paid to 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 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 detention confinement program, including the purchase of
electronic monitoring devices and other supervision expenses, and
may as necessary supplement the fund with additional
appropriations.
§62-11B-7a. Employment by county commission of home detention
confinement 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 the sheriff as a home
detention confinement supervisor or may designate the county
sheriff to supervise offenders ordered to undergo home detention
confinement and to administer the county's home detention
confinement program. Any person so employed 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 detention 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 detention 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
shall be is reasonable cause to believe that a participant in a
home detention 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 detention
confinement there shall be 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 detention confinement and said participant's participation
was imposed as an alternative sentence to another form ofincarceration, 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 confinement. Any
participant under an order of home detention confinement shall be
subject to the same penalty or penalties, upon the circuit
court's finding of a violation of the order of home detention
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 supervisor may
arrest the participant with or without 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 disposition hearing:
Provided,
That the
participant shall receive credit towards any sentence imposedafter 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 detention 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 detention 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 detention confinement;
(2) The crime for which the offender was convicted;
(3) The date the offender's home detention 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 detention confinement.
§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 the
detention of types of confinement available for adult or juvenile
offenders. The provisions of this article may be applied at the
discretion of the trial circuit or magistrate court as an
alternate means of detention confinement.
§62-11B-12. Supervision of home detention confinement by circuit
court.
Notwithstanding any provision of this code to the contrary,
in any case where a person has been ordered to home detention
confinement where that person is not in the custody or control of
the division of corrections, the circuit judge court shall have
the authority of the board of probation and parole regarding the
release, early release, or release on parole of the person.