H. B. 2756
(By Delegates Laird, Mahan and Staton)
[Introduced March 26, 1997; referred to the Committee on the
Judiciary.]
A BILL to amend section two, article eight-f of chapter sixty one
of the code of West Virginia, one thousand nine hundred thirty
one as amended, and to further amend said article by creating
a new section, section ten; and to amend section two, article
twelve, chapter sixty two of said code be amended; all
relating to modifying registration requirements for persons
convicted of acts causing the person to be registered under
provisions of the sex offender registration act, and adding
definitions and reporting requirements associated with the sex
offender registration act.
Be it enacted by the legislature of the state of West Virginia
That section two, article eight-f, chapter sixty-one of the
code one thousand nine hundred thirty-one, as amended be amended;
that article eight-f be further amended by adding thereto a new
section, designated section ten; and that section two, article twelve, chapter sixty-two of said code be amended, all to read as
follows:
CHAPTER 61. CRIMES AND THEIR PUNISHMENT
ARTICLE 8F. SEX OFFENDER REGISTRATION ACT
§61-8F-2. Registration.
(a) Any person who has been convicted of a violation of the
provisions of article eight-b, eight-c or eight-d of this chapter,
or of section fourteen, article two, or of section thirteen,
article eight of this chapter, or of a similar provision in another
jurisdiction shall be required to be registered as set forth in
this article. Any person who has been convicted of an attempt to
commit any of the offenses set forth in this section shall also be
required to register as set forth in this article.
(b) On the date that any person convicted of the crimes listed
herein is released, is granted probation, is granted a suspended
sentence, is released on parole or probation, or is ordered to be
placed on home detention, the commissioner of corrections, regional
jail supervisor or city or sheriff operating a jail which releases
such person and any parole or probation officer who releases such
person or supervises such person following the release shall obtain all information required by this subsection prior to the release of
the person and shall send written notice of the release of the
person to the state police within three days of receiving the
information. The notice shall include:
(1) The full name of the person;
(2) The address where the person shall reside;
(3) The person's social security number;
(4) A recent photograph of the person; and
(5) A brief description of the crime for which the person was
convicted.;
(6) Fingerprints; and
(7) FoOor any person determined to be a sexually violent
predator, the notice shall also include:
(i) Identifying physical and other traits;
(ii) History of the offense; and
(iii) Documentation of any treatment received for the mental
abnormality or personality disorder.
(c) At the time the person is convicted of the crimes set
forth in subsection (a) of this section, the person shall sign in
open court, a statement acknowledging that he or she understands
the requirements imposed by this article. The court shall inform
the person so convicted of the requirements to register imposed by this article and shall further satisfy itself by interrogation of
the defendant or his or her counsel that the defendant has received
notice of the provisions of this article and that the defendant
understands such provisions. Such statement, when signed and
witnessed shall constitute prima facie evidence that the person had
knowledge of the requirements of this article.
(d) When a person required to register under this article is
released following incarceration, the commissioner of corrections,
the regional jail supervisor or the city or sheriff or any other
person supervising the operation of the place of confinement shall,
within three days, inform the state police of such release and
provide such further information as is required by this article.
(e) The state police shall maintain a central registry of all
persons who register under this article and shall release
information only as provided in this article.
(d) For the purposes of this article, sexually violent
offenses shall be defined as any criminal offenses set forth in
article eight-b, of this chapter which include forcible compulsion,
bodily injury or the use of deadly weapons.
(g) A person is defined as a sexually violent predator when
the person is convicted of a sexually violent offense and who
suffers from a mental abnormality or personality disorder that makes the person likely to engage in predatory sexually violent
offenses.
(h) A person is defined as having a mental abnormality if the
person has a disorder that makes the person likely to engage in
predatory sexually violent offenses.
(i) The term "predatory act" as defined in this article mean
an act directed at a stranger or at a person with whom a
relationship has been established or promoted for the primary
purpose of victimization.
(j) Determining if the offender is a sexually violent predator
shall be the responsibility of the person or persons conducting the
offender's psychiatric study and diagnosis required for probation
eligibility as set forth in section five, article twelve of chapter
sixty two of this code.
§61-8F-10. Address Verification.
The state police shall verify addressees of those persons
registered as sexually violent predators every ninety days and all
other registered persons once a year.
CHAPTER 62. CRIMINAL PROCEDURE
ARTICLE 12. PROBATION AND PAROLE.
§62-12-2. Eligibility for probation.
(a) All persons who are found guilty of or plead guilty to any felony, the maximum penalty for which is less than life
imprisonment, and all persons who are found guilty of or plead
guilty to any misdemeanor, shall be eligible for probation,
notwithstanding the provisions of sections eighteen and nineteen,
article eleven, chapter sixty-one of this code.
(b) The provisions of subsection (a) of this section to the
contrary notwithstanding, any person who commits or attempts to
commit a felony with the use, presentment or brandishing of a
firearm shall be ineligible for probation. Nothing in this section
shall apply to an accessory before the fact or a principal in the
second degree who has been convicted as if he or she were a
principal in the first degree if, in the commission of or in the
attempted commission of the felony, only the principal in the first
degree used, presented or brandished a firearm.
(c)(1) The existence of any fact which would make any person
ineligible for probation under subsection (b) of this section
because of the commission or attempted commission of a felony with
the use, presentment or brandishing of a firearm shall not be
applicable unless such fact is clearly stated and included in the
indictment or presentment by which such person is charged and is
either (i) found by the court upon a plea of guilty or nolo
contendere, or (ii) found by the jury, if the matter be tried before a jury, upon submitting to such jury a special interrogatory
for such purpose or (iii) found by the court, if the matter be
tried by the court, without a jury.
(2) The amendments to this subsection adopted in the year one
thousand nine hundred eighty-one:
(A) Shall apply to all applicable offenses occurring on or
after the first day of August of that year;
(B) Shall apply with respect to the contents of any indictment
or presentment returned on or after the first day of August of that
year irrespective of when the offense occurred;
(C) Shall apply with respect to the submission of a special
interrogatory to the jury and the finding to be made thereon in any
case submitted to such jury on or after the first day of August of
that year or to the requisite findings of the court upon a plea of
guilty or in any case tried without a jury: Provided, That the
state shall give notice in writing of its intent to seek such
finding by the jury or court, as the case may be, which notice
shall state with particularity the grounds upon which such finding
shall be sought as fully as such grounds are otherwise required to
be stated in an indictment, unless the grounds therefor are alleged
in the indictment or presentment upon which the matter is being
tried;
(D) Shall not apply with respect to cases not affected by such
amendment and in such cases the prior provisions of this section
shall apply and be construed without reference to such amendment;
and
Insofar as such amendments relate to mandatory sentences
without probation, all such matters requiring such sentence shall
be proved beyond a reasonable doubt in all cases tried by the jury
or the court.
(d) For the purpose of this section, the term "firearm" shall
mean any instrument which will, or is designed to, or may readily
be converted to, expel a projectile by the action of an explosive,
gunpowder, or any other similar means.
(e) In the case of any person who has been found guilty of, or
pleaded guilty to, a felony or misdemeanor under the provisions of
section twelve or twenty-four, article eight of chapter sixty-one,
or under the provisions of article eight-c or eight-b, both of
chapter sixty-one, all of this code, such person shall only be
eligible for probation after undergoing a physical, mental and
psychiatric study and diagnosis which shall include an on-going
treatment plan requiring active participation in sexual abuse
counseling at a mental health facility or through some other
approved program: Provided, That nothing disclosed by the person during such study or diagnosis shall be made available to any law
enforcement agency, or other party without that person's consent,
or admissible in any court of this state, unless such information
disclosed shall indicate the intention or plans of the probationer
to do harm to any person, animal, institution, or property, in
which case such information may be released only to such persons as
might be necessary for protection of the said person, animal,
institution, or property.
(f) In the case where the probationer has met the definition
of a sexually violent predator as defined in article eight-f of
chapter sixty-one, the state police shall be notified within three
days of release, so that the probationer shall be included in the
sexual offender registry. The notification must include the
following information:
(1) The full name of the person;
(2) The address where the person shall reside;
(3) The person's social security number;
(4) A recent photograph of the person;
(5) Fingerprints;
(6) Identifying physical and other traits;
(7) Offense history; and
(8) Documentation of any treatment received for the mental abnormality or personality disorder.
NOTE: The purpose of this bill is to update the state's sex
offender registry to bring it into compliance with new federal
requirements. These changes are required to prevent a loss of
$400,000.00 per year in federal funds appropriated to assist state
law enforcement programs.
Strike-throughs indicate language that would be stricken from
the present law. a, and underscoring indicates new language that would
be added.