H. B. 4028
(By Delegates Flanigan and Wills)
[Introduced January 14, 2002; 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 the transfer of
certain juvenile offender cases to adult criminal court; and
requiring a longer notice period to juvenile offenders of the
state's motion to transfer the offender's case to adult court.
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 is
to 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 is
upon the state to establish the grounds by clear and convincing
evidence. Any hearing held under the provisions of this section is
to be held within seven fifteen 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
kidnapping 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) 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 was 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 was 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 was 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 was 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 was 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 was 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 was 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 was 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; or
(5) The juvenile has committed the crime of second degree
arson as defined in section two, article three, chapter sixty-one
of this code involving setting fire to or burning a public building or church. For purposes of this subdivision, the term "public
building" means a building or structure of any nature owned, leased
or occupied by this state, a political subdivision of this state or
a county board of education and used at the time of the alleged
offense for public purposes. For purposes of this subdivision, the
term "church" means a building or structure of any nature owned,
leased or occupied by a church,
religious sect, society or
denomination and used at the time of the alleged offense for
religious worship or other religious or benevolent purpose, or as
a residence of a minister or other member of clergy.
(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 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, has the right to either directly appeal an order of transfer to the supreme court of
appeals or to appeal the 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 is to be filed within ten days
from the date of the entry of any such order of transfer, and the
petition for appeal is to be presented to the supreme court of
appeals within forty-five days from the entry of the order of
transfer. The provisions of article five, chapter fifty-eight of
this code pertaining to the appeals of judgments in civil actions
applies to appeals under this chapter except as modified in this
section. 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 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 a transcript was made by the party
seeking appeal within ten days of entry of the order of transfer.
In the event any notice of intent to appeal and request for
transcript be timely filed, proceedings in criminal court are to be
stayed upon motion of the defendant pending final action of the supreme court of appeals.
NOTE: The purpose of this bill is to provide a juvenile
against whom the State has moved to transfer his or her juvenile
case to adult court with a lengthier notice prior to hearing on the
motion.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.