H. B. 2748
(By Delegates Martin and Adkins)
[Introduced March 27, 1993; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact sections seven and eleven, article
seven, chapter sixty-one of the code of West Virginia, one
thousand nine hundred thirty-one, as amended; to further
amend said article seven by adding thereto three new
sections, designated sections seven-a, seven-b and seven-c;
and to amend and reenact section two, article twelve,
chapter sixty-two of said code, all relating to dangerous
weapons and penalties.
Be it enacted by the Legislature of West Virginia:
That sections seven and eleven, article seven, chapter
sixty-one of the code of West Virginia, one thousand nine hundred
thirty-one, as amended, be amended and reenacted; that said
article seven be further amended by adding thereto three new
sections, designated sections seven-a, seven-b and seven-c; and
that section two, article twelve, chapter sixty-two of said code
be amended and reenacted, all to read as follows:
CHAPTER 61. CRIMES AND THEIR PUNISHMENT.
ARTICLE 7. DANGEROUS WEAPONS.
§61-7-7. Persons prohibited from possession of deadly weapons.
Notwithstanding any provision of this code to the contrary,
no person who: (1) Has been convicted of a felony in this state
or in any other jurisdiction; (2) has been discharged under less
than honorable conditions from the armed forces of the United
States; (3) has been adjudicated as a mental incompetent or has
been committed involuntarily to a mental institution; (4) is an
alien illegally or unlawfully in the United States; or (5) is
addicted to alcohol, a controlled substance or a drug, or is an
unlawful user thereof shall have in his or her possession any
firearm or other deadly weapon: Provided, That any person
prohibited from possessing a firearm or other deadly weapon by
the provisions of this section may petition the circuit court of
the county in which he or she resides and if the court finds by
clear and convincing evidence that such person is competent and
capable of exercising the responsibility concomitant with the
possession of a firearm or other deadly weapon the court may
enter an order allowing such person to possess such weapon if
such would not violate any federal statute.
It is unlawful for any person who is ineligible to possess
a firearm pursuant to the provisions of this section to solicit,
employ or assist anyone to purchase a firearm. Any person who is
ineligible to possess a firearm pursuant to the provisions of
this section who solicits, employs or assists any person to
purchase a firearm is guilty of a felony, and, upon convictionthereof, shall be imprisoned in the penitentiary for not less
than one year nor more than ten years.
Any person who violates the provisions of this section shall
be guilty of a misdemeanor, and, upon conviction thereof, shall
be fined not less than one hundred dollars nor more than one
thousand dollars or confined in the county jail for not less than
ninety days nor more than one year, or both.
§61-7-7a. Furnishing, selling and transporting firearms to
ineligible persons.
No person may willfully furnish a firearm to a person known
to be ineligible to possess a firearm pursuant to the provisions
of this article or the provisions of any federal law.
No person may purchase a firearm with the intent to resell
or otherwise provide such firearm to any person who is ineligible
to possess a firearm under the provisions of this article or the
provisions of any federal law.
No person may transport a firearm out of the state to be
resold or otherwise provided to any person who is known to be
ineligible to possess a firearm under federal law or the law of
the state of residence of the recipient.
Any person violating the provisions of this section is
guilty of a felony, and, upon conviction thereof, shall be
imprisoned in the penitentiary for not less than one year nor
more than ten years, or fined not more than ten thousand dollars
or both fined and imprisoned.
§61-7-7b. Armed career habitual offender; separate penalty.
Any person who has been convicted of two or more violent
felony offenses or serious drug offenses, which have been
separately brought and concluded and which arose out of separate
occurrences, and who, within five years of his or her last
conviction for a violent felony or serious drug offense or of his
or her release from incarceration, is convicted of another felony
involving the use of a firearm is guilty of a felony, and, upon
conviction thereof, shall be imprisoned for not less than ten nor
more than thirty years. The previous felonies to be considered
when determining whether a person is an armed career habitual
criminal offender shall include violations of the laws of this
state and violations of the laws of any other state or the United
States which, if committed in this state would be a violent
felony or serious drug offense.
"Serious drug offense" means an offense under state law
involving the manufacture, distribution or possession with intent
to manufacture or distribute a controlled substance for which a
minimum term of imprisonment of one year or more is prescribed by
law.
"Violent felony" means any crime punishable by imprisonment
for a term not less than one year that has as an element the use,
attempted use or threatened use of physical force against the
person of another.
§61-7-7c. Restricting transfer of guns through gun dealers to
persons within thirty days of issuance of driver's
license.
No dealer in firearms may sell or otherwise transfer a
firearm to a prospective purchaser until thirty days have elapsed
from the issuance to the prospective purchaser of a valid West
Virginia driver's license.
§61-7-11. Brandishing deadly weapons; threatening or causing
breach of the peace; brandishing deadly weapons on
premises of educational facility or court; penalties.
(a) It shall be unlawful for any person armed with a firearm
or other deadly weapon, whether licensed to carry the same or
not, to carry, brandish, or use such weapon in a way or manner to
cause, or threaten, a breach of the peace. Any person violating
this subsection shall be guilty of a misdemeanor, and, upon
conviction thereof, shall be fined not less than fifty nor more
than one thousand dollars, or shall be confined in the county
jail not less than ninety days nor more than one year, or both.
(b) It shall be unlawful for any person armed with a firearm
or deadly weapon, either openly or concealed, except for law-
enforcement officers on duty, to expose, brandish, unholster or
hold such firearm in his or her hand or expose, brandish or hold
such deadly weapon in his or her hand (1) on the premises of any
primary or secondary educational facility in this state, except
for valid educational purposes by faculty or by individuals
invited by faculty, or with the written permission of the
principal, or (2) on any premises housing a court of law. Any
person violating this subsection shall be guilty of a
misdemeanor, and, upon conviction thereof, shall be fined notless than two five hundred dollars nor more than one two
thousand dollars, or confined in the county jail not less than
six eight months nor more than one year, or both.
CHAPTER 62. CRIMINAL PROCEDURE.
ARTICLE 12. PROBATION AND PAROLE.
§62-12-2. Eligibility for probation.
(a) All persons who are found guilty of or plead guilty to
any felony, the maximum penalty for which is less than life
imprisonment, and all persons who are found guilty of or plead
guilty to any misdemeanor, shall be eligible for probation,
notwithstanding the provisions of sections eighteen and nineteen,
article eleven, chapter sixty-one of this code.
(b) The provisions of subsection (a) of this section to the
contrary notwithstanding, any person who commits or attempts to
commit a felony with the use, presentment or brandishing of a
firearm or who is convicted of any felony drug offense shall be
ineligible for probation or parole. Nothing in this section
shall apply to an accessory before the fact or a principal in the
second degree who has been convicted as if he or she were a
principal in the first degree if, in the commission of or in the
attempted commission of the felony, only the principal in the
first degree used, presented or brandished a firearm.
(c)(1) The existence of any fact which would make any person
ineligible for probation under subsection (b) of this section
because of the commission or attempted commission of a felony
with the use, presentment or brandishing of a firearm shall notbe applicable unless such fact is clearly stated and included in
the indictment or presentment by which such person is charged and
is either (i) found by the court upon a plea of guilty or nolo
contendere, or (ii) found by the jury, if the matter be tried
before a jury, upon submitting to such jury a special
interrogatory for such purpose or (iii) found by the court, if
the matter be tried by the court, without a jury. The circuit
court, when considering a sentence of a person convicted of a
violent crime, shall have all information relating to previous
convictions of that person, including juvenile convictions.
(2) The amendments to this subsection adopted in the year
one thousand nine hundred eighty-one:
(A) Shall apply to all applicable offenses occurring on or
after the first day of August of that year;
(B) Shall apply with respect to the contents of any
indictment or presentment returned on or after the first day of
August of that year irrespective of when the offense occurred;
(C) Shall apply with respect to the submission of a special
interrogatory to the jury and the finding to be made thereon in
any case submitted to such jury on or after the first day of
August of that year or to the requisite findings of the court
upon a plea of guilty or in any case tried without a jury:
Provided, That the state shall give notice in writing of its
intent to seek such finding by the jury or court, as the case may
be, which notice shall state with particularity the grounds upon
which such finding shall be sought as fully as such grounds areotherwise required to be stated in an indictment, unless the
grounds therefor are alleged in the indictment or presentment
upon which the matter is being tried;
(D) Shall not apply with respect to cases not affected by
such amendment and in such cases the prior provisions of this
section shall apply and be construed without reference to such
amendment; and
Insofar as such amendments relate to mandatory sentences
without probation, all such matters requiring such sentence shall
be proved beyond a reasonable doubt in all cases tried by the
jury or the court.
(d) For the purpose of this section, the term "firearm"
shall mean any instrument which will, or is designed to, or may
readily be converted to, expel a projectile by the action of an
explosive, gunpowder, or any other similar means.
(e) In the case of any person who has been found guilty of,
or pleaded guilty to, a felony or misdemeanor under the
provisions of section twelve or twenty-four, article eight of
chapter sixty-one, or under the provisions of article eight-c or
eight-b, both of chapter sixty-one, all of this code, such person
shall only be eligible for probation after undergoing a physical,
mental and psychiatric study and diagnosis which shall include an
on-going treatment plan requiring active participation in sexual
abuse counseling at a mental health facility or through some
other approved program: Provided, That nothing disclosed by the
person during such study or diagnosis shall be made available toany law enforcement agency, or other party without that person's
consent, or admissible in any court of this state, unless such
information disclosed shall indicate the intention or plans of
the probationer to do harm to any person, animal, institution, or
property, in which case such information may be released only to
such persons as might be necessary for protection of the said
person, animal, institution, or property.
(f) In the case of any person who has been found guilty of,
or pleaded guilty to, an offense which is a second offense of
violent crime, such person shall not be eligible for probation or
parole.
NOTE: The purpose of this bill is to create enhanced
penalties for convictions of crimes involving the use of
firearms, create additional crimes for attempts to obtain
firearms for ineligible persons, require gun dealers to refrain
from selling firearms to a person who has obtained a driver's
license within the past thirty days, establish definitions and
punishment of an armed career habitual offender, make certain
offenses ineligible for probation and provide for prior
convictions, including juvenile convictions to be considered by
a sentencing court.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.
Sections seven-a, seven-b and seven-c, article seven,
chapter sixty-one are new; therefore, strike-throughs and
underscoring have been omitted.