COMMITTEE SUBSTITUTE
FOR
H. B. 2247
(By Delegates Hunt, Amores, Seacrist, Tillis,
Faircloth, Thomas and Givens)
(Originating in the Committee on the Judiciary)
[April 2, 1997]
A BILL to amend and reenact sections one and one-a, article
eleven-a, chapter sixty-two of the code of West Virginia,
one thousand nine hundred thirty-one, as amended, relating
to eliminating eligibility of violent offenders for work
release and sentencing alternatives; and crediting community
service against criminal fine or confinement.
Be it enacted by the Legislature of West Virginia:
That sections one and one-a, article eleven-a, chapter
sixty-two of the code of West Virginia, one thousand nine hundred
and thirty-one, as amended, be amended and reenacted, all to read
as follows:
ARTICLE 11A. RELEASE FOR WORK AND OTHER PURPOSES.
§62-11A-1. Release for work and other purposes by courts of
record with criminal jurisdiction.
(1) When a defendant is sentenced or committed for a term of
one year or less by a court of record having criminal
jurisdiction, such the court may in its order grant to such that
defendant the privilege of leaving the jail during necessary and reasonable hours for any of the following purposes: Provided,
That those defendants convicted of first or second degree sexual
assault or first or second degree murder are ineligible for
release under subdivisions (a) through (c) herein:
(a) To work at his or her employment;
(b) To seek employment;
(c) To conduct his or her own business or to engage in other
self-employment, including in the case of a woman, housekeeping
and attending to the needs of his or her family;
(d) To attend an educational institution;
(e) To obtain medical treatment;
(f) To devote time to any other purpose approved of or
ordered by the court, including participation in the litter
control program of the county unless the court specifically finds
that this alternative service would be inappropriate.
(2) Whenever an inmate who has been granted the privilege of
leaving the jail under this section is not engaged in the
activity for which such leave is the privilege was granted, he
or she shall be confined in jail.
(3) An inmate sentenced to ordinary confinement may petition
the court at any time after sentence for the privilege of leaving
jail under this section and may renew his or her petition in the
discretion of the court. The court may withdraw the privilege at
any time by order entered with or without notice.
(4) If the inmate has been granted permission to leave the
jail to seek or take employment, the court's probation officers,
or if none, the state's division of corrections shall assist him or her in obtaining suitable employment and in making certain
that employment already obtained is suitable. Employment shall
not be deemed suitable unsuitable if the wages or working
conditions or other circumstances present a danger of
exploitation or of interference in a labor dispute in the
establishment in which the inmate would be employed.
(5) If an inmate is employed for wages or salary, the clerk
of the court shall collect the same or shall require the inmate
to turn over his or her wages or salary in full when received,
and shall deposit the same in a trust account and shall keep a
ledger showing the status of the account of each inmate.
Earnings levied upon pursuant to writ of attachment or execution
or in other lawful manner shall be collected from the employer
and shall may not be collected hereunder, but when the clerk has
requested transmittal of earnings prior to levy, such request
shall have priority. When After an employer transmits such an
inmate's earnings to the clerk pursuant to this subsection, he
shall have no liability that employer is no longer liable to the
inmate for such those earnings. From such those earnings so
collected or transmitted, the clerk shall pay the inmate's board
and personal expenses both inside and outside the jail and shall
deduct installments on fines, if any, and, to the extent directed
by the court, shall pay the support of the inmate's dependents:
Provided,
That at least twenty-five percent of the earnings
collected or received by the clerk on behalf of an inmate shall
be paid for the support of such inmate's dependents, if any. If
sufficient funds are available after making the foregoing payments, the clerk may, with the consent of the inmate, pay, in
whole or in part, any unpaid debts of the inmate. Any balance
then remaining shall be retained by the clerk and shall be paid
to the inmate at the time of his or her discharge.
(6) An inmate who is serving serves his or her sentence
pursuant to this section shall be is eligible for a reduction of
his or her term sentence for good behavior and faithful
performance of duties in the same manner as if he or she had
served his or her term sentence in ordinary confinement.
(7) The court shall may not make an order granting the
privilege of leaving the institution under this section unless it
is satisfied that there are adequate facilities for the
administration of
such the
privilege in the jail or other
institution in which the defendant will be confined.
(8) In every case wherein the defendant has been convicted
of an offense, defined in section twelve, article eight, chapter
sixty-one, or in article eight-b or eight-d of said chapter
against a child, the defendant shall not live in the same
residence as any minor child, nor exercise visitation with any
minor child and shall have no contact with the victim of the
offense: Provided,
That the defendant may petition the court of
the circuit wherein he was so convicted for a modification of
this term and condition of this probation and the burden shall
rest upon the defendant to demonstrate that a modification is in
the best interest of the child.
§62-11A-1a. Other sentencing alternatives.
(a) Any person who has been convicted in a circuit court or in a magistrate court under any criminal provision of this code
of a misdemeanor or felony, which is punishable by confinement in
the county jail, may, in the discretion of the sentencing judge
or magistrate, as an alternative to the sentence imposed by
statute for
such the
crime, be sentenced under one of the
following programs: Provided, That those defendants convicted of
first or second degree sexual assault or first or second degree
murder are ineligible for sentencing alternatives under this
subsection:
(1) The weekend jail program under which persons would be
are required to spend weekends or other days normally off from
work in jail;
(2) The work program under which sentenced persons would be
are required to spend the first two or more days of their
sentence in jail and then, in the discretion of the court, would
be are assigned to a county agency to perform labor within the
jail, or in and upon the buildings, grounds, institutions,
bridges, roads, including orphaned roads used by the general
public and public works within the county. Eight hours of such
labor shall be credited as one day of served against the sentence
imposed. Persons sentenced under this program may be required to
provide their own transportation to and from the work site, lunch
meals and work clothes; or
(3) The community service program under which persons
sentenced would spend no time in jail but would be are sentenced
to perform a number of hours or days of community service work
with tax supported agencies government entities or charitable or nonprofit entities approved by the circuit court. Regarding any
portion of the sentence designated as confinement, eight hours of
community service work shall be credited as one day of served
against the sentence imposed. Regarding any portion of the
sentence designated as a fine, the fine shall be credited at an
hourly rate equal to the prevailing federal minimum wage at the
time the sentence was imposed. In the discretion of the court,
the sentence credits may run concurrently or consecutively.
Persons sentenced under this program may be required to provide
their own transportation to and from the work site, lunch meals
and work clothes.
(b) In no event may The duration of the alternate sentence
may not exceed the maximum period of incarceration otherwise
allowed.
(c) In imposing a sentence under the provisions of this
section, the court shall first make the following findings of
fact and incorporate them into the court's sentencing order:
(1) The person sentenced was not convicted of an offense for
which a mandatory period of confinement is imposed by statute;
(2) In circuit court cases, that the person sentenced is not
a habitual criminal within the meaning of sections eighteen and
nineteen, article eleven, chapter sixty-one of this code;
(3) In circuit court cases, that adequate facilities for the
administration and supervision of alternative sentencing programs
are available through the court's probation officers or the
county sheriff or, in magistrate court cases, that adequate
facilities for the administration and supervision of alternative sentencing programs are available through the county sheriff; and
(4) That an alternative sentence under provisions of this
article will best serve the interests of justice.
(d) Persons sentenced by the circuit court under the
provisions of this article shall remain under the administrative
custody and supervision of the court's probation officers or the
county sheriff. Persons sentenced by a magistrate shall remain
under the administrative custody and supervision of the county
sheriff.
(e) Persons sentenced under the provisions of this section
may be required to pay the costs of their incarceration,
including meal costs, at the discretion of the court.
(f) Persons sentenced under the provisions of this section
remain under the jurisdiction of the court. The court may
withdraw any alternative sentence at any time by order entered
with or without notice and require that the remainder of the
sentence be served in the county jail: Provided,
That no
alternative sentence directed by the sentencing judge or
magistrate or administered under the supervision of the sheriff,
his deputies, a jailer or a guard, shall may require the
convicted person to perform duties which would be considered
detrimental to the convicted person's health as attested by a
physician.
NOTE: The purpose of this bill is to eliminate violent
offenders from that group of criminal defendants and inmates who
are eligible under existing law for work release and alternative
sentencing under §62-11A-1a.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.