What Is a Third-Degree Felony in West Virginia?

West Virginia is somewhat unique in its approach to classifying felonies. For instance, unlike most states, it employs an indeterminate sentencing structure, in which each offense is assigned a minimum and maximum sentence. The severity of the crime determines the potential sentence.

Among the various violations of the law, felonies are considered the most severe. Based on the doctrine of retribution and to serve as a deterrent, the conditions for plea bargains, bail, and restitution are more stringent. Moreover, individuals convicted of third-degree felony offenses are typically incarcerated in state prison.

In West Virginia, felonies are not categorized into distinct classes. On the contrary, the laws for individual felony offenses stipulate the allowable sentences for that crime. However, the actual time an individual serves in detention depends on the individual.

For instance, third-degree sexual assault (West Virginia Code § 61-8B-5) carries a sentence of 1 to 5 years in a state correctional facility, and a fine of up to $10,000. Third-degree arson (West Virginia Code Section 61-3-3) is punishable by 1 to 3 years in prison. A third or subsequent DUI offense within 10 years is punishable by a potential sentence of 1 to 3 years in prison and a fine between $3,000 and $5,000. While deciding felony cases, judges pay close attention to the nature of the offense, the extent of damage caused, and the individual’s criminal record.

Common Offenses That Fall Under Third-Degree Felony Charges

In West Virginia, felonies are the most serious types of crimes. They are punishable by time in state detention facilities. Some third-degree felonies include third-degree sexual assault. Per West Virginia Code section 61-8B-5, an individual commits sexual assault of the third degree when they engage in sexual intercourse with another person in a situation where the victim lacks mental capacity to consent, and there is use of force or threat of force. Such an action is punishable by a potential sentence of one to five years imprisonment and a fine of up to $10,000. The individual may also be registered as a sex offender, depending on the circumstances.

Third-degree arson involves deliberately burning another person's property valued at $500 or over. It also encompasses aiding, counseling, or soliciting someone else to commit such an act. It is punishable by imprisonment for 1 to 5 years.

Third offense DUI is when an individual is arrested driving under the influence of alcohol, controlled substances, or drugs for the third time within 10 years. It is punishable by imprisonment for 1 to 3 years. Of this, a 90-day mandatory jail term is imposed, while the remainder is left to the judge's discretion. There is also a court-ordered substance abuse treatment.

Penalties and Sentencing for Third-Degree Felonies in West Virginia

The gravity of the felony charge depends on the extent of damage and the individual’s criminal record. Repeat offenders often get longer sentences. This is meant both as a deterrent and for rehabilitation purposes to reduce recidivism. In addition, the presence of aggravating factors, such as the use of a weapon, and underlying motives, such as racism, can elevate the charge to a higher-level felony.

For a third-degree felony, such as third degree arson, the punishment is 1 to 5 years in prison. In addition, the offender may be fined up to $2,000 and made to pay restitution for damages caused. Third degree sexual assault is punishable by 1 to 5 years imprisonment and a fine in the range of $10,000.

Moreover, an offender convicted for driving under the influence for a third consecutive time within 10 years faces 1 to 3 years imprisonment and/or fines from $3,000 to $5,000. In addition, the individual's driver's license is suspended for up to 10 years, and an ignition interlock device is installed compulsorily.

Under certain conditions, per West Virginia Code §62-11D-3, judges may apply discretion to decide whether to suspend a prison sentence and release the offender on probation, provided they are ready to comply with conditions, which may include monitoring with electronic devices.

Will You Go to Jail for a Third-Degree Felony in West Virginia?

There's a non-trivial chance that an individual convicted of a third-degree felony would go to jail once it is established that they are guilty beyond a reasonable doubt. For instance, an offender convicted of sexual assault in the third degree, the applicable sentence is applied directly. Under West Virginia Code section 61-8B-5, the minimum sentence is 1 year in jail. After serving the minimum sentence, the individual may be eligible for parole.

Some factors that may affect parole eligibility include aggravating circumstances. Also, based on the judge's discretion, the offender may be granted deferred adjudication for up to three years. Similarly, a conviction for third-degree arson carries a prison sentence of 1 to 3 years. As provided by West Virginia Code §61-3-3, the individual is eligible for parole after serving at least one year of their sentence.

How Long Does a Third-Degree Felony Stay on Your Record?

There is no statutory provision wherein criminal records go away with the passage of time. Third degree felony conviction records remain on the offender's criminal record indefinitely, unless they are expunged by a court order.

Moreover, a felony conviction comes with indirect implications, such as impacting the offender's education prospects, employment, accommodation, and travel opportunities. These are some of the collateral consequences of a third-degree felony conviction. Previous offenders also run the risk of the possibility of enhanced sentences for a subsequent felony offense per West Virginia Code § 61-11-18. Also, their professional license may be revoked.

Can a Third-Degree Felony Be Sealed or Expunged in West Virginia?

In West Virginia, sealing and expungement refer to the same thing. Under West Virginia Code §61-11-25, expungement is the legal process in which the court seals a conviction record, making it unavailable to the public. A successful expungement would remove any entries of the offender's criminal record. Subsequently, it is treated as if the conviction never occurred. However, the record may be opened by a court order.

The West Virginia Second Chance law gives individuals with third degree felony convictions the opportunity to expunge their records, provided they are eligible. Offenders may petition the court to expunge a third degree felony conviction if it was an eligible non-violent offense. Also, offenders may petition the court to have their sentence reduced to a misdemeanor under the second chance law.

The eligibility conditions for expungement in West Virginia include:

• The offense must not involve the intentional infliction of serious bodily harm or violence to another individual
• The mandatory waiting period of 5 years must have elapsed after the offender completed the terms of their sentence. This could be shortened to three years upon completing an approved substance abuse program.
• The individual must not have any pending charges
• The individual must demonstrate rehabilitation and that the expungement does not pose a risk to public welfare.

How Third-Degree Felonies Compare to First- and Second-Degree Felonies

West Virginia uses an indeterminate sentencing structure, and the sentence is commensurate with the gravity of the charges. First degree felonies are the most severe crimes in West Virginia. To serve as a nudge in the direction of societally acceptable behavior, they attract significantly harsher sentences and heavier fines. For instance, per West Virginia Code Section 61-11, murder is punishable by up to life imprisonment. Voluntary manslaughter has a maximum sentence of 15 years behind bars, while rape in aggravated cases may lead to 35 years imprisonment and up to $10,000 fine.

Second degree felonies are not as severe as first degree felonies, but there is a high probability that they would lead to lengthy jail terms. They include robbery, malicious assault, and kidnapping.

In contrast, third degree felony offenses like third degree sexual assault and third degree arson have a maximum of 5 years imprisonment.

How to Look Up Third-Degree Felony Records in West Virginia

Third degree felony records, as other criminal records in West Virginia, are generally deemed public unless they are specifically exempted by statute. Individuals who wish to look up third degree felony records in West Virginia may search through the online database. They can search using parameters such as the case type or date.

Alternatively, they may contact the office of the clerk of the circuit court or district court where the case was heard. The clerk’s office has custody of court records, and requesters may find details of specific third degree felony convictions. However, information involving juveniles, mental health, and domestic violence is not publicly accessible.

Furthermore, requesters may reach out to the West Virginia State Police. They are required to provide valuable information about the records for a successful search. This includes the name of the offender, case number, date, and inmate number.

In addition to official sources, third party websites provide access to third degree felony records. These are not associated with government agencies; rather, they aggregate information from different government repositories. Therefore, information obtained from them should be verified with the official sources.

Probation and Parole for Third-Degree Felony Offenders

In West Virginia, an individual convicted of a third degree felony may qualify for probation or parole depending on the nature of the crime and their criminal history. For certain offenses, probation is not an option. These include felonies involving the use of firearms and violent felonies.

At sentencing, the judge has the prerogative to decide whether to grant probation as an alternative to incarceration. If granted, the offender must agree to comply with terms put forward by the court designed to nudge them towards rehabilitation. Parole is granted by the parole board which considers the inmate on the basis of their rehabilitation and criminal record, amongst other factors.

Some guidelines for eligibility include:

• An inmate with two previous felony convictions must serve the minimum term required for their crime before any parole considerations
• An inmate serving a sentence less than life imprisonment may become eligible for parole consideration after serving one quarter of their sentence.