Senate Bill No. 24
(By Senator Buckalew)
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[Introduced February 12, 1997; referred to the
Committee on the Judiciary.]
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A BILL to amend and reenact section two, article twelve, chapter
sixty-two of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, relating to persons eligible
for probation.
Be it enacted by the Legislature of West Virginia:
That section two, article twelve, chapter sixty-two of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted to read as follows:
ARTICLE 12. PROBATION AND PAROLE.
§62-12-2. Eligibility for probation.
(a) All persons who have not been previously convicted of a
felony within five years from the date of the felony for which
they are charged, and who are found guilty of or plead guilty
to any felony, the maximum penalty for which is less than life
imprisonment, and all persons, whether previously convicted or
not, 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 may
not be applicable unless such fact is clearly stated and included
in the indictment or presentment by which such the 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 the 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 the 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 the 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 Do not apply with respect to cases not affected by
such the amendment and in such cases the prior provisions of this
section shall apply and be construed without reference to such
the amendment; and
Insofar as such the 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 means 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 the 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 the 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 the
information may be released only to such persons as might be
necessary for protection of the said person, animal, institution
or property.
NOTE: The purpose of this bill is to return this section
relating to eligibility for probation to how it read before it
was amended in 1986.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.