Senate Bill No. 91
(By Senators Anderson, Ross and Minard)
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[Originating in the Committee on the Judiciary;
reported January 21, 1994.]
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A BILL to amend and reenact section ten, article five, chapter
forty-nine of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, relating to lowering the age
for which a juvenile may be transferred to an adult stage
for an offense involving a crime of violence against the
person or the commission of a second felony offense; and
adding manufacture, delivery or possession with the intent
to deliver a narcotic drug as a transferrable offense.
Be it enacted by the Legislature of West Virginia:
That section ten, article five, chapter forty-nine of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted to read as follows:
ARTICLE 5. JUVENILE PROCEEDINGS.
§49-5-10. Waiver and transfer of jurisdiction.
(a) Upon written motion of the prosecuting attorney filed at
least eight days prior to the adjudicatory hearing and with
reasonable notice to the child, the parents, guardians orcustodians of the child, and the child's counsel, the court shall
conduct a hearing to determine if juvenile jurisdiction should be
waived and the proceeding should be transferred to the criminal
jurisdiction of the court. Any motion filed in accordance with
this section shall state, with particularity, the grounds for the
requested transfer, including the grounds relied upon set forth
in subsection (d) of this section, and the burden shall be upon
the state to establish such grounds by clear and convincing
proof. Any hearing held under the provisions of this section
shall be held within seven days of the filing of the motion for
transfer unless it is continued for good cause.
(b) No inquiry relative to admission or denial of the
allegations of the charge or the demand for jury trial shall be
made by or before the court until a decision shall have been made
relative to whether the proceeding is to be transferred to
criminal jurisdiction.
(c) The court shall transfer a juvenile proceeding to
criminal jurisdiction if a child who has attained the age of
sixteen years shall make a demand on the record to be transferred
to the criminal jurisdiction of the court. Such cases may then
be referred to a magistrate for trial, if otherwise cognizable by
a magistrate.
(d) The court may, upon consideration of the child's mental
and physical condition, maturity, emotional attitude, home or
family environment, school experience and similar personal
factors, transfer a juvenile proceeding to criminal jurisdictionif there is probable cause to believe that:
(1) The child has committed the crime of treason under
section one, article one, chapter sixty-one of this code; the
crime of murder under sections one, two and three, article two of
said chapter; the crime of robbery involving the use or
presenting of firearms or other deadly weapons under section
twelve of said article; the crime of kidnapping under section
fourteen-a of said article; the crime of first degree arson under
section one, article three of said chapter; or charging sexual
assault in the first degree under section three, article eight-b
of said chapter; and in such case, the existence of such probable
cause shall be sufficient grounds for transfer without further
inquiry; or
(2) A child has committed an offense of violence to the
person which would be a felony if the child were an adult:
Provided, That the child has been previously adjudged delinquent
for the commission of an offense which would be a violent felony
if the child were an adult; or
(3) A child has committed an offense which would be a felony
if the child were an adult: Provided, That the child has been
twice previously adjudged delinquent for the commission of an
offense which would be a felony if the child were an adult; or
(4) A child, fifteen years of age or over, has committed an
offense of violence to the person which would be a felony if
committed by an adult; or
(5) A child, fifteen years of age or over, has committed anoffense which would be a felony if committed by an adult:
Provided, That such child has been previously adjudged delinquent
for an offense which would be a felony if the child were an
adult; or
(6) A child has committed a violation of the provisions of
section four hundred one, article four, chapter sixty-a of this
code which would be a felony if the child were and adult
involving the manufacture, delivery or possession with the intent
to deliver a narcotic drug. For purposes of this subdivision,
the term "narcotic drug" shall have the same definition as that
set forth in section one hundred one, article one of said
chapter.
(e) If, after a hearing, the court directs the transfer of
any juvenile proceeding to criminal jurisdiction, it shall state
on the record the findings of fact and conclusions of law upon
which its decision is based or shall incorporate such findings of
fact and conclusions of law in its order directing transfer.
(f) The child shall have the right to directly appeal an
order of transfer to the supreme court of appeals of the state of
West Virginia: Provided, That notice of intent to appeal and a
request for transcript be filed within ten days from the date of
the entry of any such order and the petition for appeal shall be
presented to the supreme court of appeals within forty-five days
from the entry of such order, and that, in default thereof, the
right of appeal and the right to object to such order of transfer
shall be waived and may not thereafter be asserted. Theprovisions of article five, chapter fifty-eight of this code
pertaining to the appeals of judgments in civil actions shall
apply to appeals under this chapter except as herein modified.
The judge of the circuit court may, prior to the expiration of
such period of forty-five days, by appropriate order, extend and
re-extend such period for such additional period or periods, not
to exceed a total extension of sixty days, as in his opinion may
be necessary for preparation of the transcript: Provided,
however, That the request for such transcript was made by the
party seeking appeal within ten days of entry of such order of
transfer. In the event any such notice of intent to appeal and
request for transcript be timely filed, proceedings in criminal
court shall be stayed upon motion of the defendant pending final
action of the supreme court of appeals thereon.
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(NOTE: The purpose of this bill is to lower the age for
which a juvenile may be transferred to adult status for an
offense involving a crime of violence to the person and adding
manufacture, delivery or possession with the intent to deliver a
narcotic drug as a transferrable offense.)