Senate Bill No. 399
(By Senator Kessler, Edgell, Mitchell, Unger, Minear,
Fanning, Minard and McKenzie)
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[Introduced February 4, 2000; referred to the Committee
on the Judiciary.]
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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 transferring to
the criminal jurisdiction of the court any crime committed on
school board property by a juvenile over the age of fourteen
years where a firearm is involved.
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) Upon written motion 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 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) 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) 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) 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) 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; the commission of any crime on board of education property
which involves a firearm; or the crime of sexual assault in the
first degree under section three, article eight-b of said chapter;
or
(2) 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) 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) 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) of this section, but who is younger than fourteen
years of age.
(f) 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) of this
section, but who is younger than fourteen years of age.
(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:
(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) 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) 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) 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 is to make more severe any
crime committed on school board property by a juvenile over the age
of 14 when a firearm is involved.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.