Senate Bill No. 104
(By Senators Tomblin (Mr. President) and Sprouse
By Request of the Executive)
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[Introduced January 17, 2000; referred to the Committee on
the Judiciary.]
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A BILL to amend and reenact section four, article eleven-a, chapter
sixty-one of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, relating to defendant
restitution to victim assistance programs; and authorizing
courts to order defendants to contribute monetarily or
through hours of community service to local victims' crime
assistance programs as restitution.
Be it enacted by the Legislature of West Virginia:
That section four, article eleven-a, chapter sixty-one of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted to read as follows:
ARTICLE 11A. VICTIM PROTECTION ACT OF 1984.
§61-11A-4. Restitution; when ordered.
(a) The court, when sentencing a defendant convicted of a
felony or misdemeanor causing physical, psychological or economic
injury or loss to a victim, shall order, in addition to or in lieu
of any other penalty authorized by law, that the defendant make
restitution to any victim of the offense, unless the court finds
restitution to be wholly or partially impractical as set forth in
this article. If the court does not order restitution, or orders
only partial restitution, under this section, the court shall state
on the record the reasons therefor.
(b) The order shall require that such defendant:
(1) In the case of an offense resulting in damage to, loss
of, or destruction of property of a victim of the offense:
(A) Return the property to the owner of the property or
someone designated by the owner; or
(B) If return of the property under subparagraph (A) above is
impossible, impractical or inadequate, pay an amount equal to the
greater of: (i) The value of the property on the date of
sentencing; or (ii) The value of the property on the date of the
damage, loss or destruction less the value (as of the date the
property is returned) of any part of the property that is returned;
(2) In the case of an offense resulting in bodily injury to
a victim:
(A) Pay an amount equal to the cost of necessary medical and
related professional services and devices relating to physical,
psychiatric and psychological care, including nonmedical care and
treatment rendered in accordance with a method of healing
recognized by the law of the place of treatment;
(B) Pay an amount equal to the cost of necessary physical and
occupational therapy and rehabilitation; and
(C) Reimburse the victim for income lost by such victim as a
result of such offense;
(3) In the case of an offense resulting in bodily injury that
also results in the death of a victim, pay an amount equal to the
cost of necessary funeral and related services; and
(4) In any case, if the victim (or if the victim is deceased,
the victim's estate) consents, or if payment is impossible or
impractical, make restitution in services in lieu of money, or make
restitution to a person or organization designated by the victim or
the estate.
(c) If the court decides to order restitution under this
section, the court shall, if the victim is deceased, order that the
restitution be made to the victim's estate.
(d) The court shall impose an order of restitution to the
extent that such order is as fair as possible to the victim and the imposition of such order will not unduly complicate or prolong the
sentencing process.
(e) The court shall not impose restitution with respect to a
loss for which the victim has received or is to receive
compensation, except that the court may, in the interest of
justice, order restitution to any person who has compensated the
victim for such loss to the extent that such person paid the
compensation. An order of restitution shall require that all
restitution to victims under such order be made before any
restitution to any other person under such order is made.
(f) The court may require that such defendant make
restitution under this section within a specified period or in
specified installments. The end of such period or the last such
installment shall not be later than: (i) The end of the period of
probation, if probation is ordered; (ii) five years after the end
of the term of imprisonment imposed, if the court does not order
probation; and (iii) five years after the date of sentencing in any
other case. If not otherwise provided by the court under this
subsection, restitution shall be made immediately. A court may
order a defendant to contribute either monetarily or through hours
of service to a local crime victim's assistance program which meets
the following requirements:
(1) The program is approved by a circuit judge presiding in
that judicial circuit; and
(2) The program is a nonprofit organization certified as a
corporation in this state, and is governed by a board of directors.
(g) If such defendant is placed on probation or paroled under
this article, any restitution ordered under this section shall be
a condition of such probation or parole unless the court or parole
board finds restitution to be wholly or partially impractical as
set forth in this article. The court may revoke probation and the
parole board may revoke parole if the defendant fails to comply
with such order. In determining whether to revoke probation or
parole, the court or parole board shall consider the defendant's
employment status, earning ability, financial resources, the
willfulness of the defendant's failure to pay, and any other
special circumstances that may have a hearing on the defendant's
ability to pay.
(h) An order of restitution may be enforced by the state or
a victim named in the order to receive the restitution in the same
manner as a judgment in a civil action.
NOTE: The purpose of this bill is to authorize courts to
order defendants to contribute monetarily or through hours of community service to local victim's crime assistance programs as
restitution.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.