H. B. 4096


(By Delegate McGraw)
[Introduced January 21, 1994; referred to the
Committee on the Judiciary.]




A BILL to amend article eleven, chapter sixty-one of the code of West Virginia, one thousand nine hundred thirty-one, as amended by adding thereto a new section, designated section eighteen-a; and to amend and reenact section nineteen of said article relating to providing recidivist penalties for persons sentenced to a county or regional jail upon convictions for two or more misdemeanors; and providing that a previous felony conviction is treated as two previous sentencings to a county or regional jail upon misdemeanor convictions in determining enhanced sentencing.
Be it enacted by the Legislature of West Virginia:

That article eleven, chapter sixty-one of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended by adding thereto a new section, designated section eighteen-a; and that section nineteen of said article be amended and reenacted to read as follows:
ARTICLE 11. GENERAL PROVISIONS CONCERNING CRIMES.

§ 61 - 11 - 18a. Punishment for third or subsequent offense of a misdemeanor.

When any person is convicted of an offense and is subject to confinement in any county or regional jail therefor, and it is determined, as provided in section nineteen of this article, that such person had been twice sentenced in this state upon convictions for misdemeanors, as such is defined in section one of this article, to any county or regional jail, the court shall add five months to the time for which the person is or would otherwise be sentenced: Provided, That for the purpose of this section, in the event that the person has previously been convicted for any offense punishable by confinement in the penitentiary, that such previous conviction shall be treated as the equivalent of two former sentences to any county or regional jail in this state upon convictions for misdemeanors.

When it is determined, as provided in section nineteen hereof, that a person has been sentenced three or more previous times in this state upon convictions for misdemeanors, as such is defined in section one of this article, the court shall add ten months to the time for which the person is or would otherwise be sentenced.
§ 61 - 11 - 19. Procedure in trial of persons convicted for second or third felony offense; of persons convicted for third or more misdemeanor offense .

(a) It shall be the duty of the prosecuting attorney when he has knowledge of former sentence or sentences to the penitentiary of any person convicted of an offense punishable by confinement in the penitentiary to give information thereof to the court immediately upon conviction and before sentence. Said court shall, before expiration of the term at which such person was convicted, cause such person or prisoner to be brought before it, and upon an information filed by the prosecuting attorney, setting forth the records of conviction and sentence, or convictions and sentences, as the case may be, and alleging the identity of the prisoner with the person named in each, shall require the prisoner to say whether he is the same person or not. If he says he is not, or remains silent, his plea, or the fact of his silence, shall be entered of record, and a jury shall be impaneled to inquire whether the prisoner is the same person mentioned in the several records. If the jury finds that he is not the same person, he shall be sentenced upon the charge of which he was convicted as provided by law; but if they find that he is the same, or after being duly cautioned if he acknowledged in open court that he is the same person, the court shall sentence him to such further confinement as is prescribed by section eighteen of this article on a second or third conviction as the case may be.

The clerk of such court shall transmit a copy of said information to the warden of the penitentiary, together with the other papers required by the provisions of section ten, article eight, chapter sixty-two of the code of West Virginia, one thousand nine hundred thirty-one.
Nothing contained herein shall be construed as repealing the provisions of section four, article eight, chapter sixty-two of the code of West Virginia, one thousand nine hundred thirty-one, but no proceeding shall be instituted by the warden, as provided therein, if the trial court has determined the fact of former conviction or convictions as provided herein.
(b) It shall be the duty of the prosecuting attorney when he has knowledge of two or more former sentences to any county or regional jail in this state upon convictions for misdemeanors as such are defined in section one of this article, to give information thereof to the circuit court immediately upon conviction and before sentence for any subsequent misdemeanor offense: Provided , That in the event the subsequent offense has been adjudicated as such in any court not of record, whether or not a sentence has been pronounced, this section does not apply: Provided , however, That for the purpose of this subdivision, in the event that the person has previously been convicted for any offense punishable by confinement in the penitentiary, that such previous conviction shall be treated as the equivalent of two former sentences to a county or regional jail upon convictions for misdemeanors. Upon receiving information regarding the former sentences, the circuit court shall, before expiration of the term at which such person was convicted, cause such person to be brought before it, and upon an information filed by the prosecuting attorney, setting forth the records of convictions and sentences and alleging the identity of the person with the person named in each, shall require such person to say whether he or she is the same person or not. If the person says he or she is not, or remains silent, his or her plea, or the fact of his or her silence shall be entered of record, and a jury shall be impaneled to inquire whether the person is the same person mentioned in the several records. If the jury finds that the person is not the same person, he or she shall be sentenced upon the charge of which he or she was convicted as provided by law; but if they find that the person is the same person, the court shall sentence him or her to such further confinement as is prescribed by section eighteen-a of this article on a third or subsequent conviction as the case may be.
The clerk of such court shall transmit a copy of such information to the sheriff or other authority in charge of the county jail or regional jail, as the case may be, along with the order of commitment issued by the circuit court.



NOTE: The purpose of this bill is to provide enhanced penalties for persons sentenced to a county or regional jail for misdemeanors on two or more former occasions. The bill provides that a person who was sentenced twice before to a county or regional jail receives five extra months upon conviction for another misdemeanor in addition to the underlying jail sentence. Three or more previous convictions add ten extra months. The bill also provides that a felony conviction will be treated as the equivalent to two previous misdemeanor sentences served.

§61-11-18a is new; therefore, strike-throughs and underscoring have been omitted.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.