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".)