H. B. 2834
(By Delegates Caputo, Manchin, Kuhn and Fragale)
[Introduced February 3, 2003; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact section four hundred six, article four,
chapter sixty-a of the code of West Virginia, one thousand
nine hundred thirty-one, as amended, relating to disallowing
the granting of probation to persons convicted of distributing
controlled substances under certain circumstances.
Be it enacted by the Legislature of West Virginia:
That section four hundred six, article four, chapter sixty-a
of the code of West Virginia, one thousand nine hundred thirty-one,
as amended, be amended and reenacted to read as follows:
ARTICLE 4. OFFENSES AND PENALTIES.
§60A-4-406. Distribution to persons under the age of eighteen by
persons over the age of twenty-one; distribution by
persons eighteen or over in or on, or within one
thousand feet of, school or college; increasing
mandatory period of incarceration prior to parole eligibility; disallowing the grant of probation.
(a) Notwithstanding any other provision of law to the
contrary, a person is ineligible for probation and may not be
granted parole for a period of three years if after he or she is
sentenced to the custody of the commissioner of corrections for
service of a sentence of incarceration and is convicted of a felony
violation under the provisions of subdivision (i), subsection (a),
section four hundred one of this article for distribution of a
controlled substance and:
(1) Is twenty-one years of age or older at the time of the
distribution upon which the conviction is based, and the person to
whom the controlled substance was distributed was under the age of
eighteen years at the time of the distribution; or
(2) Is eighteen years of age or older and the distribution
upon which the conviction is based occurred in or on, or within one
thousand feet of, the real property comprising a public or private
elementary, vocational or secondary school or a public or private
college, junior college or university in this state.
(b) Notwithstanding any other provision of law to the
contrary, a person is ineligible for probation and may not be
granted parole for a period of two years if after he or she is
sentenced to the custody of the commissioner of corrections for
service of a sentence of incarceration and is convicted of a felony
violation under the provisions of subdivision (ii), subsection (a), section four hundred one of this article for distribution of a
controlled substance and:
(1) Is twenty-one years of age or older at the time of the
distribution upon which the conviction is based, and the person to
whom the controlled substance was distributed was under the age of
eighteen years at the time of the distribution; or
(2) Is eighteen years of age or older and the distribution
upon which the conviction is based occurred in or on, or within one
thousand feet of, the real property comprising a public or private
elementary, vocational or secondary school or a public or private
college, junior college or university in this state.
(c) The existence of any fact which would make any person
subject to the provisions of this section may not be considered
unless the fact is clearly stated and included in the indictment or
presentment by which the person is charged and is either:
(1) Found by the court upon a plea of guilty or nolo
contendere;
(2) Found by the jury, if the matter be tried before a jury,
upon submission to the jury of a special interrogatory for such
purpose; or
(3) Found by the court, if the matter be tried by the court
without a jury.
(d) Nothing in this section shall be construed to limit the
sentencing alternatives made available to circuit court judges under other provisions of this code.
NOTE: The purpose of this bill is to prohibit the grant of
probation to persons convicted of certain drug offenses involving
distributing within a certain distance of a school or to underaged
persons.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.