ENGROSSED
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 35
(By Senators Kessler, Fanning, Minard, Minear,
McKenzie, Edgell, Mitchell, Unger, Snyder,
Bailey, Anderson, Caldwell, Rowe and Hunter)
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[Originating in the Committee on the Judiciary;
reported February 28, 2001.]
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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; any criminal offense committed on board of
education property which involves the use, presentment or
brandishing of 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.
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(NOTE: The purpose of this bill is to treat as a severe
crime any crime committed on school board property by a juvenile
over the age of fourteen 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.)