Senate Bill No. 654
(By Senator Laird)
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[Introduced March 20, 2009; referred to the Committee on the
Judiciary; and then to the Committee on Finance .]
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A BILL to amend and reenact §62-11A-1a of the Code of West
Virginia, 1931, as amended, relating to prohibiting any
sentencing judge or magistrate from establishing,
supervising, directing or managing a work release program or
other alternative sentencing program.
Be it enacted by the Legislature of West Virginia:
That §62-11A-1a of the Code of West Virginia, 1931, as
amended, be amended and reenacted to read as follows:
ARTICLE 11A. RELEASE FOR WORK AND OTHER PURPOSES.
§62-11A-1a. Other sentencing alternatives.
(a) Any person who has been convicted in a circuit court or
in a magistrate court under any criminal provision of this code
of a misdemeanor or felony, which is punishable by imposition of
a fine or confinement in
the county or regional jail or a state
correctional facility, or both
fine fined and
confinement
confined, may, in the discretion of the sentencing judge or
magistrate, as an alternative to the sentence imposed by statute
for the crime, be sentenced under one of the following programs:
(1) The weekend jail program under which persons would be
required to spend weekends or other days normally off from work
in jail;
(2) The work program under which sentenced persons would be
required to spend the first two or more days of their sentence in
jail and then, in the discretion of the court, would be assigned
to a county agency to perform labor within the jail, or in and
upon the buildings, grounds, institutions, bridges, roads,
including orphaned roads used by the general public and public
works within the county. Eight hours of labor are to be credited
as one day of the sentence imposed. Persons sentenced under this
program may be required to provide their own transportation to
and from the work site, lunch and work clothes; or
(3) The community service program under which persons
sentenced would spend no time in jail but would be sentenced to a
number of hours or days of community service work with government
entities or charitable or nonprofit entities approved by the
circuit court. Regarding any portion of the sentence designated
as confinement, eight hours of community service work is to be
credited as one day of the sentence imposed. Regarding any
portion of the sentence designated as a fine, the fine is to be
credited at an hourly rate equal to the prevailing federal
minimum wage at the time the sentence was imposed. In the discretion of the court, the sentence credits may run
concurrently or consecutively. Persons sentenced under this
program may be required to provide their own transportation to
and from the work site, lunch and work clothes;
(4) A day-reporting center program if the program has been
implemented in the sentencing court's jurisdiction or in the area
where the offender resides. For purposes of this subdivision
"day-reporting center" means a court-operated or court-approved
facility where persons ordered to serve a sentence in this type
of facility are required to report under the terms and conditions
set by the court for purposes which include, but are not limited
to, counseling, employment training, alcohol or drug testing or
other medical testing.
(b) In no event shall any court be permitted to establish
any work program or other alternative sentencing program that is
supervised, directed or managed by any sentencing judge or
magistrate.
_____(b) (c) In no event may the duration of the alternate
sentence exceed the maximum period of incarceration otherwise
allowed.
(c) (d) In imposing a sentence under the provisions of this
section, the court shall first make the following findings of
fact and incorporate them into the court's sentencing order:
(1) The person sentenced was not convicted of an offense for
which a mandatory period of confinement is imposed by statute;
(2) In circuit court cases, that the person sentenced is not
a habitual criminal within the meaning of sections eighteen and
nineteen, article eleven, chapter sixty-one of this code;
(3) In circuit court cases, that the offense underlying the
sentence is not a felony offense for which violence or the threat
of violence to the person is an element of the offense;
(4) In circuit court cases, that adequate facilities for the
administration and supervision of alternative sentencing programs
are available through the court's probation officers or the
county sheriff or, in magistrate court cases, that adequate
facilities for the administration and supervision of alternative
sentencing programs are available through the county sheriff; and
(5) That an alternative sentence under provisions of this
article will best serve the interests of justice.
(d) (e) Persons sentenced by the circuit court under the
provisions of this article remain under the administrative
custody and supervision of the court's probation officers or the
county sheriff. Persons sentenced by a magistrate remain under
the administrative custody and supervision of the county sheriff.
(e) (f) Persons sentenced under the provisions of this
section may be required to pay the costs of their incarceration,
including meal costs:
Provided, That the judge or magistrate
considers the person's ability to pay the costs.
(f) (g) Persons sentenced under the provisions of this
section remain under the jurisdiction of the court. The court may withdraw any alternative sentence at any time by order
entered with or without notice and require that the remainder of
the sentence be served in
the county jail
regional jail or a
state correctional facility:
Provided, That no alternative
sentence directed by the sentencing judge or magistrate or
administered under the supervision of the sheriff, his or her
deputies, a jailer or a guard, may require the convicted person
to perform duties which would be considered detrimental to the
convicted person's health as attested by a physician.
(g) (h) No provision of this section may be construed to
limit a circuit judge or magistrate's ability to impose a period
of supervision or participation in a community corrections
program created pursuant to article eleven-c, chapter sixty-two
of this code.
NOTE: The purpose of this bill is to prohibit any
sentencing judge or magistrate from establishing, supervising,
directing or managing a work release program or other alterative
sentencing program.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.