Senate Bill No. 544
(By Senator Buckalew)
[Introduced February 19, 1996; referred to the Committee
on the Judiciary.]
A BILL to amend and reenact section ten-a, article two, chapter
sixty-one of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, relating to crimes against
the elderly; sentence not subject to suspension or
probation; and admissibility of heresay evidence.
Be it enacted by the Legislature of West Virginia:
That section ten-a, article two, chapter sixty-one of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted to read as follows:
ARTICLE 2. CRIMES AGAINST THE PERSON.
§61-2-10a. Violent crimes against the elderly; sentence not
subject to suspension or probation.
(a) If any person be convicted and sentenced for
an offense defined under the provisions of section nine or ten of this
article a felony or attempted felony, and if the person shall
have committed such offense against a person who is sixty-five
years of age or older, then the sentence shall be mandatory and
shall not be subject to suspension or probation. Provided, That
the court may, in its discretion, suspend the sentence and order
probation to any person so convicted upon condition that such
person perform public service for a period of time deemed
appropriate by the court, which service shall be rendered in or
about facilities or programs providing care or services for the
elderly: Provided, however, That the court may apply the
provisions of article eleven-a, chapter sixty-two of this code to
a person committed to a term of one year or less.
(b) The existence of any fact which would make any person
ineligible for probation under subsection (a) of this section
because of the commission or attempted commission of a felony
against a victim sixty-five years of age or older shall not be
applicable unless such fact is: (i) Found by the court upon a
plea of guilty or nolo contendere; or (ii) found by the jury, if
the matter is tried before a jury; or (iii) found by the court,
if the matter is tried by the court, without a jury.
(c) In any trial upon an indictment for commission of a
felony wherein the victim of said crime is a person sixty-five
years of age or older, hearsay testimony which does not otherwise
fall within one of the exceptions to the hearsay rule found in
rule 801, 802, 803, 804, 805 or 806 of the West Virginia rules of
criminal procedure shall be admissible into evidence.
NOTE: The purpose of this bill is to change the
applicability of this section from certain offenses to include
only felonies and attempted felonies. The bill further removes
the right of the court to suspend sentences for persons convicted
under this section and permits hearsay evidence.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.