H. B.4054
(By Delegates Smith, J., Ferrell,
Hunt,Hutchins, Rowe, Capito and White,
L.)
[Introduced January 14, 2000; referred
to the Committee on the Judiciary then
Finance.]
A BILL to amend article three, chapter sixty-one of the code of
West Virginia, one thousand nine hundred thirty-one, as
amended, by adding thereto five new sections, designated
sections thirty-nine-m, thirty-nine-n, thirty-nine-o, thirty-
nine-p and thirty-nine-q, all relating to the creation of a
worthless check restitution program in the office of
prosecuting attorney; and allowing fees for participation in
the program and for educational classes.
Be it enacted by the Legislature of West Virginia:
That article three, chapter sixty-one of the code of West
Virginia, one thousand nine hundred thirty-one, as amended, be
amended by adding thereto five new sections, designated sections thirty-nine-m, thirty-nine-n, thirty-nine-o, thirty-nine-p and
thirty-nine-q, to read as follows:
ARTICLE 3. CRIMES AGAINST PROPERTY.
§ 61-3-39m. Creation and operation of a program for worthless
check offenders; acceptance of person in program.
(a) A prosecuting attorney may create within his or her office
a worthless check restitution program for persons who have violated
sections thirty-nine and thirty-nine-a of this article. This
program may be conducted by the prosecuting attorney in conjunction
with a law enforcement agency, or by a private entity under
contract with the prosecuting attorney.
(b) The prosecuting attorney may adopt standards to determine
the appropriateness of an individual case for the program. These
standards must include the prosecuting attorney considering the
following factors:
(1) The amount of the check, draft or order made, drawn,
issued, uttered or delivered;
(2) The person's prior criminal record;
(3) The number of times the person has participated in the
program; and
(4) The number of warrants or cases pending against the person
for violations of sections thirty-nine and thirty-nine-a of this article.
(c) Except as provided in section thirty-nine-o of this
article, nothing in this section shall preclude the prosecuting
attorney from prosecuting violations of sections thirty-nine and
thirty-nine-a of this article.
§
61-3-39n. Notice to persons accepted to the worthless check
restitution program.
(a) Upon approval of an individual case for referral to the
worthless check restitution program, a representative of the
program shall send a notice by registered or certified mail to the
person named in the complaint or warrant.
(b) This notice must contain:
(1) The date and amount of the check, draft or order;
(2) The name of the payee or holder;
(3) The date before which he or she must contact the
designated representative of the worthless check restitution
program;
(4) A demand for full restitution of the face amount of the
check, draft or order and any fees reflected in the complaint or
warrant as having been imposed on the payee or holder by the
payee's or holder's bank or financial institution; and
(5) A statement that failure to pay restitution and fees may result in criminal prosecution.
§ 61-3-39o. Agreement to suspend prosecution of a person accepted
into the restitution program.
(a) The prosecuting attorney may enter into an agreement with
a participant of the worthless check restitution program to suspend
prosecution for a period to be determined by the prosecuting
attorney.
(b) To remain eligible for the worthless check restitution
program, the participant shall:
(1) Contact a representative of the program before the date
required by the notice sent pursuant to section thirty-nine-n of
this article;
(2) Agree to voluntarily comply with all the program terms;
(3) Complete a class conducted by the prosecuting attorney,
his or her designee, or a private entity under contract with the
prosecuting attorney, which offers offender education and
instruction;
(4) Pay the fee required to participate in the class;
(5) Pay full victim restitution; and
(6) Pay all fees for participation in the program, unless
those fees are waived.
(c) The prosecuting attorney shall agree not to file criminal charges if the participant in the program completes the conditions
of the agreement.
§61-3-39p. Fees for participation in the worthless check
restitution program.
(a) The prosecuting attorney, his or her designee, or a
private entity under contract with the prosecuting attorney may
collect a fee not to exceed one hundred dollars from any person
participating in the worthless check restitution program: Provided,
That where it is determined that a person is indigent and unable to
pay the fee, the prosecuting attorney shall waive the fee for that
person.
(b) The prosecuting attorney, his or her designee, or a
private entity under contract with the prosecuting attorney shall
deposit all fees collected pursuant to subsection (a) of this
section in the worthless check restitution program fund. The fund
is to be an interest-bearing account with any interest earned to be
compounded to the fund. The prosecuting attorney shall administer
the fund and may use money in the fund to pay for costs associated
with the administration of the program or to assist victims of
worthless check crimes. Any money in the fund at the end of each
fiscal year may be expended for other operating needs of the
prosecuting attorney's office, as the prosecuting attorney deems appropriate.
§ 61-3-39q. Statements by individuals referred to or participating
in the worthless check restitution program.
No statement made by a person referred to the worthless check
restitution program for restitution in connection with the
determination of his or her eligibility for participation in the
program and no statement made or information given by that person
while participating in the program is admissible in any civil or
criminal action or proceeding.
NOTE: The purpose of this bill is to define a worthless check
restitution program within the prosecuting attorney's office.
§§61-3-39m,n,o,p,q and r are new; therefore, strike-throughs
and underscoring have been omitted.
This bill was recommended by the Joint Standing Committee on
the Judiciary for introduction and passage at the 2000 legislative
session.