ENGROSSED
Senate Bill No. 79
(By Senators Wooton, Anderson, Bowman, Buckalew, Deem, Dittmar, Grubb, Miller, Oliverio, Ross, Schoonover, Scott, Wagner, White, Wiedebusch and Yoder)
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[Originating in the Committee on the Judiciary;

reported January 16, 1996.]
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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 the jurisdiction of courts over persons under eighteen years of age generally; waiver and transfer of juvenile proceedings from juvenile jurisdiction to criminal jurisdiction of the courts; and criteria.

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 or custodians of the child and the child's counsel, the court shall conduct a hearing to determine if juvenile jurisdiction should or must be waived and the proceeding 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 subsections (d), (e), (f) and (g) 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 fourteen 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 shall transfer a juvenile proceeding to criminal jurisdiction if there is probable cause to believe that:
(1) The child is at least fourteen years of age and 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; ~~and~~ 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 the crime of sexual assault in the first degree under section three, article eight-b of said chapter; or
(2) The child is at least fourteen years of age and 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 of violence to the person which would be a felony if the child were an adult; or
(3) The child is at least fourteen years of age and 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.
(e) The court may transfer a juvenile proceeding to criminal jurisdiction if there is probable cause to believe that the child would otherwise satisfy the provisions of subdivision (1), subsection (d) of this section, but who is younger than fourteen years of age.
(f) 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 jurisdiction if there is probable cause to believe that the child would otherwise satisfy the provisions of subdivision (2) or (3), subsection (d) of this section, but who is younger than fourteen years of age.
(g) 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 jurisdiction if there is probable cause to believe that:
(1) The child, who is at least fourteen years of age, has committed an offense of violence to the person which would be a felony if the child were an adult; or
(2) The child, who is at least fourteen years of age, has committed an offense which would be a felony if the child were an adult: Provided, That the child has been previously adjudged delinquent for the commission of a crime which would be a felony if the child were an adult; or
(3) The child, who is at least fourteen years of age, used or presented a firearm or other deadly weapon during the commission of a felony; or
(4) The 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 an 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.
(h) For purposes of this section, the term "offense of violence" means an offense which involves the use or threatened use of physical force against a person.
(i) 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.
(j) 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. The provisions 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 court may, within forty- five days of the entry of the order of transfer, by appropriate order, extend and re-extend the period in which to file the petition for appeal for such additional time, not to exceed a total extension of sixty days, as in the court's 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.
(NOTE: The purpose of this bill is to eliminate a clerical error by the deletion of the unintended inclusion of the word "and".)