H. B. 2658
(By Delegates Buchanan, Beach, Fleischauer and Claypole)
[Introduced March 21, 1997; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact section nine, article five, chapter
forty-nine of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, relating to juvenile
proceedings; counsel; improvement period; and requiring an
adjudicatory hearing or jury trial in certain cases.
Be it enacted by the Legislature of West Virginia:
That section nine, 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.
§49-5-9. Preliminary hearing; counsel; improvement period.
(a) Following the filing of a juvenile petition, unless a
preliminary hearing has previously been held in conjunction with
a detention hearing with respect to the same charge contained in the petition, the circuit court or referee shall hold a
preliminary hearing. In the event that the child juvenile is in
custody, such the hearing shall be held within ten days of the
time the child juvenile is taken into custody unless good cause
be shown for a continuance. If no preliminary hearing is held
within ten days of the time the child juvenile is taken into
custody, the child he or she shall be released on recognizance
unless the hearing has been continued for good cause. If the
judge is in another county in the circuit, the hearing may be
conducted in such the other county. The preliminary hearing may
be waived by the child juvenile, upon advice of his or her
counsel. At the hearing, the court or referee shall:
(1) If the child juvenile is not represented by counsel,
inform the child juvenile and his or her parents, guardian or
custodian or any other person standing in loco parentis to him or
her of the child's juvenile's right to be represented at all
stages of proceedings under this article and the right to have
counsel appointed.
(2) Appoint counsel by order entered of record, if counsel has
not already been retained, appointed or knowingly waived.
(3) Determine after hearing if there is probable cause to
believe that the child is a delinquent child juvenile is
delinquent. If probable cause is not found, the child juvenile
shall be released and the proceedings dismissed. If probable cause is found, the case shall proceed to adjudication. At the
hearing or as soon thereafter as is practicable, the date for the
adjudicatory hearing shall be set to give the child the child's
parents and attorney juvenile and his or her parents and attorney
at least ten days' notice, unless notice is waived by all
parties.
(4) In lieu of placing the child juvenile in a detention
facility when bond is not provided, the court may place the child
juvenile in the temporary custody of the state department
pursuant to section sixteen, article two of this chapter or may
place the child juvenile in the custody of a probation officer.
If the child juvenile is detained in custody, the detention shall
may not continue longer than thirty days without commencement of
the adjudicatory hearing unless good cause for a continuance be
shown by either party or, if a jury trial be demanded, no longer
than the next regular term of said the court.
(5) Inform the child juvenile of the right to demand a jury
trial.
(b) The child juvenile may move to be allowed an improvement
period for a period not to exceed one year. If the court is
satisfied that the best interest of the child juvenile is likely
to be served by an improvement period, the court may delay the
adjudicatory hearing and allow a noncustodial improvement period
upon terms calculated to serve the rehabilitative needs of the child juvenile. At the conclusion of the improvement period, the
court shall dismiss the proceeding if the terms have been
fulfilled; otherwise, the court shall proceed to the adjudicatory
stage. A motion for an improvement period shall may not be
construed as an admission or be used as evidence.
(c) Notwithstanding the provisions of subsection (b) of this
section, an adjudicatory hearing or jury trial shall be held and
the court may neither delay nor dismiss the proceedings if: (1)
Probable cause has been found to believe that the juvenile is
delinquent; (2) the juvenile is at least fourteen years of age;
and (3) the finding is related to the commission of an offense
which would be a felony if committed by an adult.
NOTE: The purpose of this bill is to require an adjudicatory
hearing or jury trial when a juvenile is at least fourteen years
old and the charges of delinquency are based on an offense which
would be a felony if committed by an adult.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that
would be added.