H. B. 4557
(By Delegates C. White, Sparks,
Stalnaker, Willison and Coleman)
[Introduced February 16, 2000; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact section ten, article five, chapter
forty-nine of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, relating to providing that
persons fourteen years or older, who are juveniles, to be
prosecuted as adults ab initio for capital offenses with the
right to apply for juvenile treatment due to special
circumstances.
Be it enacted by the Legislature of West Virginia:
That section ten, 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.
§49-5-10. W
aiver and transfer of jurisdiction.
(a) A proceeding shall, in the first instance, be transferred
to criminal jurisdiction if there is probable cause to believe
that:
(1) The juvenile is at least fourteen years of age and has
committed the crime of treason under section one, article one,
chapter sixty-one of this code; (2) the crime of murder under
sections one, two and three, article two of said chapter; (3) the
crime of robbery involving the use or presenting of firearms or
other deadly weapons under section twelve of said article; (4) the
crime of kidnaping under section fourteen-a of said article; (5)
the crime of first degree arson under section one, article three of
said chapter; or (6) the crime of sexual assault in the first
degree under section three, article eight-b of said chapter:
Provided, That a juvenile transferred to the criminal jurisdiction
of the circuit court under this subsection has the right to
petition the circuit court to have the proceedings returned to the
juvenile court: Provided, however, That the circuit court shall
return the proceedings to the juvenile court upon a showing that
special circumstances exist that would justify the return.
(a)(b) Upon With the exception of those instances enumerated
under subsection (a) of this section, the prosecuting attorney shall be required to file a written motion requesting transfer of
the juvenile proceedings to the criminal jurisdiction of the
circuit court of the prosecuting attorney filed at least eight days
prior to the adjudicatory hearing and with reasonable notice to the
juvenile, his or her counsel, and his or her parents, guardians or
custodians. The court shall thereafter conduct a hearing to
determine if juvenile jurisdiction should or must be waived and the
proceeding transferred to the criminal jurisdiction of the court.
Any motion filed in accordance with this section shall state, with
particularity, the grounds for the requested transfer, including
the grounds relied upon as set forth in subsection (d) (e), (f), or
(g) or (h) of this section and the burden shall be upon the state
to establish such grounds by clear and convincing evidence. Any
hearing held under the provisions of this section shall be held
within seven days of the filing of the motion for transfer unless
it is continued for good cause.
(b) (c) No inquiry relative to admission or denial of the
allegations of the charge or the demand for jury trial may be made
by or before the court until the court has determined whether the
proceeding is to be transferred to criminal jurisdiction.
(c) (d) The court shall transfer a juvenile proceeding to criminal jurisdiction if a juvenile who has attained the age of
fourteen years makes a demand on the record to be transferred to
the criminal jurisdiction of the court. The case may then be
referred to magistrate or circuit court for further proceedings,
subject to the court's jurisdiction.
(d) (e) The court shall transfer a juvenile proceeding to
criminal jurisdiction if there is probable cause to believe that:
(1) The juvenile is at least fourteen years of age and has
committed the crime of treason under section one, article one,
chapter sixty-one of this code; the crime of murder under sections
one, two and three, article two of said chapter; the crime of
robbery involving the use or presenting of firearms or other deadly
weapons under section twelve of said article; the crime of
kidnaping under section fourteen-a of said article; the crime of
first degree arson under section one, article three of said
chapter; or the crime of sexual assault in the first degree under
section three, article eight-b of said chapter; or
(2) (1) The juvenile is at least fourteen years of age and has
committed an offense of violence to the person which would be a
felony if the juvenile were an adult: Provided, That the juvenile
has been previously adjudged delinquent for the commission of an offense of violence to the person which would be a felony if the
juvenile were an adult; or
(3) (2) The juvenile is at least fourteen years of age and has
committed an offense which would be a felony if the juvenile were
an adult: Provided, That the juvenile has been twice previously
adjudged delinquent for the commission of an offense which would be
a felony if the juvenile were an adult.
(e) (f) The court may transfer a juvenile proceeding to
criminal jurisdiction if there is probable cause to believe that
the juvenile would otherwise satisfy the provisions of subdivision
(1), subsection (d) (a) of this section, but who is younger than
fourteen years of age.
(f) (g) The court may, upon consideration of the juvenile's
mental and physical condition, maturity, emotional attitude, home
or family environment, school experience and similar personal
factors, transfer a juvenile proceeding to criminal jurisdiction if
there is probable cause to believe that the juvenile would
otherwise satisfy the provisions of subdivision (2) or (3),
subsection (d) (a) of this section, but who is younger than
fourteen years of age.
(g) (h) The court may, upon consideration of the juvenile's mental and physical condition, maturity, emotional attitude, home
or family environment, school experience and similar personal
factors, transfer a juvenile proceeding to criminal jurisdiction if
there is probable cause to believe that:
(1) The juvenile, who is at least fourteen years of age, has
committed an offense of violence to a person which would be a
felony if the juvenile were an adult; or
(2) The juvenile, who is at least fourteen years of age, has
committed an offense which would be a felony if the juvenile were
an adult: Provided, That the juvenile has been previously adjudged
delinquent for the commission of a crime which would be a felony if
the juvenile were an adult; or
(3) The juvenile, who is at least fourteen years of age, used
or presented a firearm or other deadly weapon during the commission
of a felony; or
(4) The juvenile has committed a violation of the provisions
of section four hundred one, article four, chapter sixty-a of this
code which would be a felony if the juvenile were an adult
involving the manufacture, delivery or possession with the intent
to deliver a narcotic drug. For purposes of this subdivision, the
term "narcotic drug" has the same definition as that set forth in section one hundred one, article one of said chapter.
(h) (i) For purposes of this section, the term "offense of
violence" means an offense which involves the use or threatened use
of physical force against a person.
(i) (j) If, after a hearing, the court directs the transfer of
any juvenile proceeding to criminal jurisdiction, it shall state on
the record the findings of fact and conclusions of law upon which
its decision is based or shall incorporate such findings of fact
and conclusions of law in its order directing transfer.
(j) (k) A juvenile who has been transferred to criminal
jurisdiction pursuant to the provisions of subsection (e), (f) or
(g) of this section, by an order of transfer entered after the
first day of July, one thousand nine hundred ninety-seven, shall
have the right to either directly appeal an order of transfer to
the supreme court of appeals or to appeal such order of transfer
following a conviction of the offense of transfer. If the juvenile
exercises the right to a direct appeal from an order of transfer,
the notice of intent to appeal and a request for transcript shall
be filed within ten days from the date of the entry of any such
order, and the petition for appeal shall be presented to the
supreme court of appeals within forty-five days from the entry of such order. The provisions of article five, chapter fifty-eight of
this code pertaining to the appeals of judgments in civil actions
shall apply to appeals under this chapter except as herein
modified. The court may, within forty-five days of the entry of
the order of transfer, by appropriate order, extend and reextend
the period in which to file the petition for appeal for such
additional time, not to exceed a total exten
sion of
sixty days, as
in the court's opinion may be
necessary for prepara
tion of the
transcript: Provided, That the request for such transcript was
made by the party seeking appeal within ten days of entry of such
order of transfer. In the event any such notice of intent to
appeal and request for transcript be timely filed, proceedings in
criminal court shall be stayed upon motion of the defendant pending
final action of the supreme court of appeals thereon.
NOTE: The purpose of this bill to provide that persons
fourteen years or older, who are juveniles, be prosecuted as adults
ab initio for capital offenses with the right to apply for juvenile
treatment due to special circumstances.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.