ENROLLED
H. B. 2329
(By Delegates Ennis, Swartzmiller and G. White)
[Passed March 10, 2006; in effect ninety days from passage.]
AN ACT to amend and reenact §61-11A-4 of the Code of West Virginia,
1931, as amended, relating to authorizing a court to order a
defendant to contribute monetarily or through hours of service
to a local crime victim's assistance program or juvenile
mediation program which meets certain requirements.
Be it enacted by the Legislature of West Virginia:
That §61-11A-4 of the Code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
ARTICLE 11A. VICTIM PROTECTION ACT OF 1984.
§61-11A-4. Restitution; when ordered.
(a) The court, when sentencing a defendant convicted of a
felony or misdemeanor causing physical, psychological or economic
injury or loss to a victim, shall order, in addition to or in lieu
of any other penalty authorized by law, that the defendant make
restitution to any victim of the offense, unless the court finds
restitution to be wholly or partially impractical as set forth in this article.
If the court does not order restitution, or orders only
partial restitution, under this section, the court shall state on
the record the reasons therefor.
(b) The order shall require that the defendant:
(1) In the case of an offense resulting in damage to, loss of,
or destruction of property of a victim of the offense:
(A) Return the property to the owner of the property or
someone designated by the owner; or
(B) If return of the property under subparagraph (A) is
impossible, impractical or inadequate, pay an amount equal to the
greater of: (i) The value of the property on the date of
sentencing; or (ii) the value of the property on the date of the
damage, loss or destruction less the value (as of the date the
property is returned) of any part of the property that is returned;
(2) In the case of an offense resulting in bodily injury to a
victim:
(A) Pay an amount equal to the cost of necessary medical and
related professional services and devices relating to physical,
psychiatric and psychological care, including nonmedical care and
treatment rendered in accordance with a method of healing
recognized by the law of the place of treatment;
(B) Pay an amount equal to the cost of necessary physical and
occupational therapy and rehabilitation; and
(C) Reimburse the victim for income lost by the victim as a
result of the offense;
(3) In the case of an offense resulting in bodily injury that
also results in the death of a victim, pay an amount equal to the
cost of necessary funeral and related services; and
(4) In any case, if the victim (or if the victim is deceased,
the victim's estate) consents, or if payment is impossible or
impractical, make restitution in services in lieu of money, or make
restitution to a person or organization designated by the victim or
the estate.
(c) If the court decides to order restitution under this
section, the court shall, if the victim is deceased, order that the
restitution be made to the victim's estate.
(d) The court shall impose an order of restitution to the
extent that the order is as fair as possible to the victim and the
imposition of the order will not unduly complicate or prolong the
sentencing process.
(e) The court shall not impose restitution with respect to a
loss for which the victim has received or is to receive
compensation, except that the court may, in the interest of
justice, order restitution to any person who has compensated the
victim for loss to the extent that the person paid the
compensation. An order of restitution shall require that all
restitution to victims under the order be made before any restitution to any other person under the order is made.
(f) The court may require that such defendant make restitution
under this section within a specified period or in specified
installments. The end of the period or the last installment shall
not be later than: (i) The end of the period of probation, if
probation is ordered; (ii) five years after the end of the term of
imprisonment imposed, if the court does not order probation; and
(iii) five years after the date of sentencing in any other case.
If not otherwise provided by the court under this subsection,
restitution shall be made immediately.
(g) If the defendant is placed on probation or paroled under
this article, any restitution ordered under this section shall be
a condition of the probation or parole unless the court or Parole
Board finds restitution to be wholly or partially impractical as
set forth in this article.
The court may revoke probation and the Parole Board may revoke
parole if the defendant fails to comply with the order. In
determining whether to revoke probation or parole, the court or
parole board shall consider the defendant's employment status,
earning ability, financial resources, the willfulness of the
defendant's failure to pay, and any other special circumstances
that may have a bearing on the defendant's ability to pay.
(h) An order of restitution may be enforced by the state or a
victim named in the order to receive the restitution in the same manner as a judgment in a civil action.
(i) Notwithstanding any provision of this section to the
contrary, the court may order, in addition to or in lieu of,
restitution, that a defendant be required to contribute
monetarily, or through hours of service, to a local crime victim's
assistance program or juvenile mediation program which meets the
following requirements:
(1) The program is approved by a circuit judge presiding in
the judicial circuit; and
(2) The program is a nonprofit organization certified as a
corporation in this state, and is governed by a board of directors.