COMMITTEE SUBSTITUTE
FOR
H. B. 2123
(By Delegates Givens, Douglas and Staton)
(Originating in the House Committee on the Judiciary)
[February 19, 1997]
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 waiver and
transfer of jurisdiction of juvenile cases to the criminal
jurisdiction of the court; and eliminating the interlocutory
appeal following transfer.
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. W
aiver 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 juvenile, his or
her counsel, and his or her parents, guardians or custodians, 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 may
be made by or before the court until a decision shall have been
made relative to the court has issued a decision concerning
whether the proceeding is to be transferred to criminal
jurisdiction.
(c) The court shall transfer a juvenile proceeding to
criminal jurisdiction if a child juvenile who has attained the
age of fourteen years shall make makes a demand on the record to
be transferred to the criminal jurisdiction of the court. Such
cases The case may then be referred to a magistrate or circuit
court for trial, if otherwise cognizable by a magistrate for
further proceedings, subject to the court's jurisdiction.
(d) The court shall transfer a juvenile proceeding to
criminal jurisdiction if there is probable cause to believe that:
(1) The child juvenile 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; 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 juvenile is at least fourteen years of age and
has committed an offense of violence to the a person which
would be a felony if the child juvenile were an adult: Provided,
That the child juvenile has been previously adjudged delinquent
for the commission of an offense of violence to the a person
which would be a felony if the child juvenile were an adult; or
(3) The child juvenile is at least fourteen years of age and
has committed an offense which would be a felony if the child
juvenile were an adult: Provided, That the child juvenile has
been twice previously adjudged delinquent for the commission of
an offense which would be a felony if the child juvenile were an
adult.
(e) The court may transfer a juvenile proceeding to criminal
jurisdiction if there is probable cause to believe that the child
juvenile 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
juvenile'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 juvenile 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
juvenile'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 juvenile, who is at least fourteen years of
age, has committed an offense of violence to the a person
which would be a felony if the child juvenile were an adult; or
(2) The child juvenile, who is at least fourteen years of
age, has committed an offense which would be a felony if the
child juvenile were an adult: Provided, That the child juvenile
has been previously adjudged delinquent for the commission of a
crime which would be a felony if the child juvenile were an
adult; or
(3) The child juvenile, 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 juvenile 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
juvenile 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
has the same definition as that set forth in section one hundred
one, article one of said chapter.
(h) In cases where a motion for transfer has been denied an
adjudicatory hearing shall occur.
(h) (iIi) 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.
(iI) (j) 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.
(k) (1) The provisions of subdivision (2) of this
subsection will apply to any juvenile transfers under
consideration for offenses occurring prior to the effective date
of this section as amended by the West Virginia Legislature
during its regular session of one thousand nine hundred ninety
seven.
(2) The child juvenile 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 exten
sion of
sixty days,
as in the court's opinion may be
necessary for prepara
tion 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 the
interlocutory appeal following transfer of proceedings from
juvenile jurisdiction to criminal jurisdiction of the court. It also provides that if a motion for transfer is denied, an
adjudicatory hearing shall occur.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.