COMMITTEE SUBSTITUTE

FOR

H. B. 4115

(By Mr. Speaker, Mr. Kiss, and Delegates Varner,

Stemple, Michael, Kominar, Cann and Amores )


(Originating in the Committee on the Judiciary)

[February 13, 2002]

A BILL to amend and reenact section nine, article one, chapter five of the code of West Virginia, one thousand nine hundred thirty-one, as amended; to amend article four, chapter fifty of said code by adding thereto a new section, designated section two-a; and to amend and reenact section nine, article ten, chapter sixty-two of said code, all relating to providing that correctional officers at state facilities and regional jails have authority to execute warrants on persons in their custody; authorizing correctional officers to apply for fugitive from justice warrants when they have reasonable grounds to believe persons in their custody are charged with crimes in other states; and, providing that video arraignments be conducted by magistrates in the county wherein the charges upon which a person is being arraigned are pending or in the alternative, by any magistrate designated to be on-call to conduct video arraignments.

Be it enacted by the Legislature of West Virginia:
That section nine, article one, chapter five of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted; that article four, chapter fifty of said code be amended by adding thereto a new section, designated section two-a; and that section nine, article ten, chapter sixty-two of said code be amended and reenacted, all to read as follows:
CHAPTER 5. GENERAL POWERS AND AUTHORITY OF THE GOVERNOR, SECRETARY OF STATE AND ATTORNEY GENERAL; BOARD OF PUBLIC WORKS; MISCELLANEOUS AGENCIES, COMMISSIONS, OFFICES, PROGRAMS, ETC.

ARTICLE 1. THE GOVERNOR.
 §5-1-9. Hearing after arrest; application for writ of habeas corpus; arrest and confinement of fugitives from another state; bail; persons involved in criminal or civil actions in this state.
(a) No person arrested upon such a warrant shall be delivered over to the agent whom the executive authority demanding him or her shall have appointed to receive him or her unless he or she shall first be taken forthwith before a judge of a court of record in this state, who shall inform him or her of the demand made for his or her surrender and of the crime with which he or she is charged, and that he or she has the right to demand and procure legal counsel and if the prisoner or his or her counsel shall state that he or they desire to test the legality of his or her arrest, the judge of such the court of record shall fix a reasonable time to be allowed him or her within which to apply for a writ of habeas corpus. When such a writ is applied for, notice thereof, and of the time and place of hearing thereon, shall be given to the prosecuting attorney of the county in which the arrest is made and in which the accused is in custody, and to the said agent of the demanding state.
(b) Any officer who shall deliver to the agent for extradition of the demanding state a person in his or her custody under the governor's warrant, in wilful willful disobedience to subdivision (a) of this section, shall be guilty of a misdemeanor and, on conviction thereof shall be fined not more than one thousand dollars or be imprisoned not more than six months, or both.
(c) The officer or persons executing the governor's warrant of arrest, or the agent of the demanding state to whom the prisoner may have been delivered, may, when necessary, confine the prisoner in the jail of any county or regional jail or city through which he or she may pass; and the keeper of such the jail shall receive and safely keep the prisoner until the officer or person having charge of him or her is ready to proceed on his or her route, such the officer or person being chargeable with the expense of keeping.
The officer or agent of a demanding state to whom a prisoner may have been delivered following extradition proceedings in another state, or to whom a prisoner may have been delivered after waiving extradition in such the other state, and who is passing through this state with such a prisoner for the purpose of immediately returning such the prisoner to the demanding state may, when necessary, confine the prisoner in the jail of any county or regional jail or city through which he or her may pass; and the keeper of such the jail shall receive and safely keep the prisoner until the officer or agent having charge of him or her is ready to proceed on his or her route, such the officer or agent, however, being chargeable with the expense of keeping: Provided, That such the officer or agent shall produce and show to the keeper of such the jail satisfactory written evidence of the fact that he or she is actually transporting such a prisoner to the demanding state after a requisition by the executive authority of such the demanding state. Such The prisoner shall may not be entitled to demand a new requisition while in this state.
(d) Whenever any person within this state shall be charged on the oath of any credible person before any judge or justice magistrate of this state with the commission of any crime in any other state and, except in cases arising under subdivision (g), section seven of this article, with having fled from justice, or with having been convicted of a crime in that state and having escaped from confinement, or having broken the terms of his or her bail, probation or parole, or whenever complaint shall have has been made before any judge or justice magistrate in this state setting forth on the affidavit of any credible person in another state that a crime has been committed in such the state and that the accused has been charged in such the state with the commission of the crime, and, except in cases arising under subdivision (g), section seven of this article, has fled from justice, or with having been convicted of a crime in that state and having escaped from confinement, or having broken the terms of his or her bail, probation or parole, and is believed to be in this state, the judge or justice magistrates shall issue a warrant directed to any peace officer commanding him or her to apprehend the person named therein, wherever he or she may be found in this state, and to bring him or her before the same or any other judge, justice magistrate, or court who or which may be available in or convenient of access to the place where the arrest may be made, to answer the charge or complaint and affidavit, and a certified copy of the sworn charge or complaint and affidavit upon which the warrant is issued shall be attached to the warrant.
(e) The arrest of a person may be lawfully made also by any peace officer, or a private person, or a correction officer when the person is in their custody, may without a warrant, upon reasonable information that the accused stands charged in the courts of a state with a crime punishable by death or by imprisonment for a term exceeding one year, but when so arrested the accused must be taken before a judge or justice magistrate with all practicable speed and complaint must be made against him or her under oath setting forth the ground for the arrest as in the preceding section and thereafter his or her answer shall be heard as if he or she had been arrested on a warrant.
(f) If from the examination before the judge or justice magistrate it appears that the person held is the person charged with having committed the crime alleged and, except in cases arising under subdivision (g), section seven of this article, that he or she has fled from justice, the judge or justice magistrate must, by a warrant reciting the accusation, commit him or her to the county jail for such a time not exceeding thirty days, and specified in the warrant, as will enable the arrest of the accused to be made under a warrant of the governor on a requisition of the executive authority of the state having jurisdiction of the offense, unless the accused give bail as provided in subdivision (g) of this section, or until he or she shall be legally discharged.
(g) Unless the offense with which the prisoner is charged is shown to be an offense punishable by death or life imprisonment under the laws of the state in which it was committed, a judge or justice magistrate in this state may admit the person arrested to bail by bond, with sufficient sureties, and in such a sum as he or she deems considers proper, conditioned for his or her appearance before him or her at a time specified in such the bond, and for his or her surrender, to be arrested upon the warrant of the governor of this state.
(h) If the accused is not arrested under warrant of the governor by the expiration of the time specified in the warrant or bond, a judge or justice magistrate may discharge him or her or may recommit him or her for a further period not to exceed sixty days, or a judge or justice magistrate may again take bail for his or her appearance and surrender as provided in subdivision (g) of this section, but within a period not to exceed sixty days after the date of such the new bond.
(i) If the prisoner is admitted to bail, and fails to appear and surrender himself or herself according to the conditions of his or her bond, the judge, or justice magistrate, by proper order, shall declare the bond forfeited and order his or her immediate arrest without warrant if he or she be within this state. Recovery may be had on such a bond in the name of the state as in the case of other bonds given by the accused in criminal proceedings within this state.
(j) If a criminal prosecution has been instituted against such the person under the laws of this state and is still pending, the governor, in his or her discretion, either may surrender him or her on demand of the executive authority of another state or hold him or her until he or she has been tried and discharged or convicted and punished in this state: Provided, That any person under recognizance to appear as a witness in any criminal proceeding pending in this state may in the discretion of the governor be surrendered on demand of the executive authority of another state or be held until such criminal proceeding pending in this state has been determined: Provided further however, That any person who was in custody upon any execution, or upon process in any suit, at the time of being apprehended for a crime charged to have been committed without the jurisdiction of this state, shall may not be delivered up without the consent of the plaintiff in such an execution or suit, until the amount of such the execution shall have has been paid, or until such the person shall be otherwise discharged from such the execution or process.
(k) The guilt or innocence of the accused as to the crime of which he or she is charged may not be inquired into by the governor or in any proceeding after the demand for extradition accompanied by a charge of crime in legal form as provided in this article shall have has been presented to the governor, except as it may be involved in identifying the person held as the person charged with the crime.
CHAPTER 50. MAGISTRATE COURTS.

ARTICLE 4. PROCEDURE BEFORE TRIAL.
§50-4-2a. Initial appearance by video to be conducted by magistrate court wherein offense is charged.

To the extent practicable, an arrestee detained at any regional jail facility, who is arraigned with the use of video imaging equipment, shall be arraigned by the magistrate court in which the charges upon which the arrestee is being arraigned are pending. Video arraignment also may be conducted by any other magistrate who is on call if no magistrate is available of the court in which the charges upon which the arrestee is being arraigned are pending. In addition, irrespective of the availability of a magistrate of the court in which the charges upon which the arrestee is being arraigned are pending, video arraignments may be conducted by any magistrate who is designated to be on call to conduct video arraignments of arrestees detained at the regional jail facility. Failure to comply with this section does not invalidate any otherwise lawful arraignment.
CHAPTER 62. CRIMINAL PROCEDURE.

ARTICLE 10. PREVENTION OF CRIME.
§62-10-9. Power and authority of sheriffs, deputy sheriffs and correctional officers to make arrests.

Sheriffs and each of their deputies are hereby authorized and empowered within their respective counties to make arrests for any crime for which a warrant has been issued in violation of any laws of the United States or of this state, and to make arrests without warrant for all violations of any of the criminal laws of the United States, or of this state, when committed in their presence. A county correctional officer may execute a warrant, issued for the arrest of a person, only when the person named in the warrant voluntarily surrenders to, or is already in the custody of the correctional officer at the county jail, or regional jail or a state correctional facility at which the correctional officer is employed.