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CHAPTER 40 - CRIME VICTIMS COMPENSATION

 

ARTICLE 1 - IN GENERAL

 

1-40-101. Short title.

 

Thisact is known and may be cited as the "Crime Victims CompensationAct".

 

1-40-102. Definitions.

 

(a) As used in this act:

 

(i) "Account" means the crime victims' compensationaccount established by W.S. 1-40-114;

 

(ii) Repealed By Laws 1998, ch. 81, 3.

 

(iii) "Criminal act" means an act committed orattempted in this state, including an act of domestic violence, whichconstitutes a crime as defined by the laws of this state or an act ofterrorism, as defined by 18 U.S.C. 2331 committed outside the United States,and which results in actual bodily injury, or actual mental harm, or death tothe victim. No act involving the operation of a motor vehicle, boat or aircraftwhich results in injury or death constitutes a crime for the purpose of thisact unless the injury or death was recklessly or intentionally inflictedthrough the use of the vehicle, boat or aircraft, or unless the act constitutesa violation of W.S. 31-5-233;

 

(iv) "Dependent" means any relative of the victim whowas wholly or partially dependent upon the victim's income at the time of hisinjury or death and includes the child of the victim born after his death;

 

(v) "Economic loss" means and includes medical andhospital expenses, loss of earnings, loss of future earnings resulting from theinjury, funeral and burial expenses and loss of support to the dependents ofthe victim to include home maintenance and child care;

 

(vi) "Medical expense" includes the cost of allmedical and dental services, mental health counseling and care, dental andprosthetic devices, eyeglasses or other corrective lenses, and servicesrendered in accordance with any method of healing recognized by the law of thisstate;

 

(vii) "Personal injury" means actual bodily injury oractual mental harm;

 

(viii) "Relative of the victim" means his spouse,parent, grandparent, stepparent, child including natural born child, stepchildor adopted child, grandchild, brother or sister;

 

(ix) "Victim" means:

 

(A) A person who suffers personal injury or is killed in thisstate as a direct result of:

 

(I) A criminal act of another person;

 

(II) The person's good faith and reasonable effort in attemptingto prevent the commission of a criminal act, or to apprehend a person engagingin a criminal act or assisting a law enforcement officer to do so;

 

(III) Assisting or attempting to assist a person against whom acrime is being perpetrated or attempted;

 

(IV) A federal crime occurring in Wyoming.

 

(B) A resident who is a victim of a crime occurring outsidethis state if:

 

(I) The crime would be compensable had it occurred inside thisstate; and

 

(II) The crime occurred in a state which does not have a crimevictim compensation program, for which the victim is eligible as eligibility isset forth in W.S. 1-40-101 through 1-40-119.

 

(C) A resident of this state who is injured or killed by an actof terrorism, as defined by 18 U.S.C. 2331, committed outside the UnitedStates;

 

(D) Family members who are Wyoming residents and who havesuffered a pecuniary loss as a result of a terrorist attack in the UnitedStates, regardless of the actual victim's residency;

 

(E) A resident of this state who is a victim of a crimeinvolving terrorism occurring outside this state if:

 

(I) The crime would be compensable had it occurred within thisstate; and

 

(II) The resident of this state suffered a pecuniary loss as adirect result of the act of terrorism committed in another state of the UnitedStates.

 

(x) "Division" means the victim services divisionwithin the office of the attorney general, created by W.S. 9-1-636;

 

(xi) "Catastrophic injury" means any permanentdisability of limbs or functions as a result of being a victim of a crime;

 

(xii) "Clandestine laboratory operation remediation"means a remediation of a clandestine laboratory operation carried out by a lawenforcement agency acting as an emergency responder pursuant to W.S.35-9-152(a)(i).

 

1-40-103. Repealed By Laws 1998, ch. 81, 3.

 

1-40-104. Division powers and duties.

 

(a) The division shall:

 

(i) Hear and determine all matters relating to claims forcompensation;

 

(ii) Publish annually a report showing its fiscal transactionsfor the preceding year, the amount of its accumulated cash and securities and abalance sheet showing its financial condition by means of an actuarialevaluation of commission assets and liabilities;

 

(iii) Keep a true and accurate record of all its proceedings,which record is open to public inspection at all reasonable hours;

 

(iv) Promulgate reasonable rules and regulations necessary tocarry out the purpose of this act pursuant to the Wyoming AdministrativeProcedure Act;

 

(v) Perform any other functions necessary to carry out thepurpose of this act;

 

(vi) Hearings and final decisions on victim's compensationsawards conducted by the division shall be exempt from the WyomingAdministrative Procedure Act, including the provisions for judicial reviewunder W.S. 16-3-114 and 16-3-115.

 

(b) In addition to any other powers specified by law, thedivision is empowered to:

 

(i) Request access to any reports of investigations, medicalrecords or other data necessary to assist the division in making adetermination of eligibility for compensation under this act. Uponauthorization of the attorney general, law enforcement officials, stateagencies and local government units shall provide assistance or informationrequested by the division;

 

(ii) Publicize the availability of compensation and informationregarding the filing of claims;

 

(iii) Investigate claims;

 

(iv) Repealed By Laws 1998, ch. 81, 3.

 

(v) Subpoena witnesses, compel their attendance, require theproduction of records and other evidence, administer oaths or affirmations,conduct hearings and receive relevant evidence;

 

(vi) Apply for and accept and administer monies from the federalgovernment, its agencies and all other sources, public and private, forcarrying out any of its functions;

 

(vii) Collect, develop, analyze and maintain statisticalinformation, records and reports as the division determines relevant ornecessary to carry out its powers and duties pursuant to this act;

 

(viii) Afterexhausting all alternatives available in paragraphs (i), (iii), (v) and (vi) ofthis subsection, direct and pay for medical examinations ofvictims as the division determines necessary to verify claims of economic lossdue to injury;

 

(ix) Collect all monies authorized by this act to be collectedby the division; and

 

(x) Pay all compensation or other benefits that are determinedto be due under this act and under division rules and regulations.

 

(c) Repealed By Laws 1998, ch. 81, 3.

 

1-40-105. Repealed By Laws 1998, ch. 81, 3.

 

1-40-106. Eligibility for compensation.

 

(a) The victim or his dependent is entitled to compensationunder this act if:

 

(i) The victim suffered personal injury as a result of acriminal act;

 

(ii) Repealed by Laws 1989, ch. 233, 2.

 

(iii) The injury to or death of the victim was not attributableto his own wrongful act;

 

(iv) The appropriate law enforcement authorities were notifiedof the criminal act allegedly causing the injury to or death of the victim assoon as practical under the circumstance after perpetration of the offense andthe claimant cooperates with appropriate law enforcement authorities withrespect to the crime for which compensation is sought;

 

(v) The application for compensation is filed with the divisionwithin one (1) year after the date of the injury to or death of the victim, orwithin any extension of time the division allows for good cause shown; and

 

(vi) The owner of real estate has paid all claims forreimbursement pursuant to W.S. 35-9-158(a)(ii).

 

(b) No victim or dependent shall be denied compensation solelybecause:

 

(i) He is a relative of the offender or was living with theoffender as a family or household member at the time of the injury or death. However, the division may award compensation to a victim or dependent who is arelative, family or household member of the offender only if the division canreasonably determine the offender will receive no economic benefit or unjustenrichment from the compensation;

 

(ii) He is not a resident of the state.

 

(c) Any person who perpetrates any criminal act on the personof another or who is convicted of a felony after applying to the division forcompensation is not eligible or entitled to receive compensation under thisact.

 

1-40-107. Application for compensation; required information.

 

(a) The application for compensation shall be on a formfurnished by the division, setting forth:

 

(i) The victim's name and address;

 

(ii) If the victim is deceased, the claimant's name and addressand his relationship to the victim, the names and addresses of the victim'sdependents and the extent to which each is dependent;

 

(iii) The date and nature of the criminal act on which claim forcompensation is based;

 

(iv) The date and place where and the law enforcement officialsto whom notification of the criminal act was given;

 

(v) The nature and extent of the injuries the victim sustainedand the names and addresses of those giving medical and hospitalizationtreatment to the victim;

 

(vi) The economic loss to the applicant and to all other personsas specified under paragraph (a)(ii) of this section resulting from the injuryor death;

 

(vii) The amount and source of benefits, payments or awards, ifany, payable to the applicant and dependents;

 

(viii) Releases authorizing the surrender to the division of allreports, medical records and other information relating to the claim and crime;and

 

(ix) Any other information the division reasonably requires.

 

(b) The division may require that materials substantiating thefacts stated in the application be submitted with the application. If thedivision finds that an application does not contain the required information orthat the facts stated therein have not been substantiated, it shall notify theapplicant in writing of the specific additional items or information ormaterials required and that the applicant has thirty (30) days from the date ofthe notice in which to furnish those items to the division. The division shallreject the application of an applicant who although notified fails to file therequested information or substantiating materials within the time specifiedunless he requests, and the division grants, an extension of time in which tofurnish that information.

 

(c) An applicant may file an amended application or additionalsubstantiating materials to correct inadvertent errors or omissions at any timebefore the division disposes of the original application. In either case, thefiling of additional information or of an amended application shall beconsidered to have been filed at the same time as the original application.

 

(d) Information contained in the claim files and records ofvictims, which are subject to any privilege of confidentiality under Wyominglaw, shall remain confidential and shall not be open to public inspection. Theinformation shall be immune from legal process and shall not, without theconsent of the person furnishing the information, be admitted as evidence orused for any purpose in any action, suit or other judicial, legislative oradministrative proceeding.

 

1-40-108. Hearing; findings; order.

 

(a) Hearings shall be held on the application and are open tothe public unless the division determines that a closed hearing is necessarybecause:

 

(i) The alleged assailant or offender has not been brought totrial and a public hearing would adversely affect either his apprehension orhis trial;

 

(ii) The victim or alleged assailant is a minor;

 

(iii) An open hearing would cause trauma for the victim;

 

(iv) A public hearing would frustrate rather than further theinterest of justice.

 

(b) A record shall be kept of the proceedings of hearings heldbefore the division and shall include the division's findings of fact andconclusions of the amount of compensation, if any, to which the applicant andpersons dependent on a deceased victim are entitled. No part of the record ofany hearing before the division may be used for any purpose in a criminalproceeding except in the prosecution of a person alleged to have perjuredhimself in his testimony before the division.

 

(c) At the conclusion of the hearing, the division shall enteran order stating:

 

(i) Its findings of fact;

 

(ii) Its decision as to whether or not compensation is due underthis act and the amount of compensation due, if any;

 

(iii) Whether disbursement of the compensation awarded is to bemade in a lump sum or in periodic payments; and

 

(iv) The person or persons to whom the compensation should bepaid.

 

(d) If the division finds, in the case of an application madeby a person dependent for his support on a deceased victim, that persons otherthan the applicant were also dependent on that victim for their support, itshall also:

 

(i) Name those persons in its order;

 

(ii) State the percentage share of the total compensation awardand the dollar amount to which each is entitled; and

 

(iii) Order that those amounts be paid to those persons directlyor, in the case of a minor or incompetent, to his guardian or conservator, asthe case may be.

 

(e) Notwithstanding subsection (a) of this section, thedivision may promulgate rules providing for an expedited claims process forapplications in which eligibility is clear and all information has beenverified.

 

1-40-109. Standards for compensation.

 

(a) For the purpose of determining the amount of compensationpayable pursuant to this act, the division, insofar as practicable, shallformulate standards for uniform application of this act and shall take intoconsideration rates and amounts of compensation payable for injuries and deathunder other laws of this state and of the United States and the availability offunds under this act.

 

(b) Loss of earnings and loss of future earnings shall bedetermined on the basis of the victim's average monthly earnings for the six(6) months immediately preceding the date of the injury, or the current federalminimum wage, whichever is less.

 

(c) Loss of support shall be determined on the basis of thevictim's or defendant's average monthly earnings for the six (6) monthsimmediately preceding the date of the injury, or the current federal minimumwage, whichever is less.

 

(d) Except as provided in subsection (e) of this section, themaximum individual award of compensation paid to any victim or dependent shallnot exceed fifteen thousand dollars ($15,000.00).

 

(e) In addition to the maximum award authorized in subsection(d) of this section, in the case of catastrophic injury the division may awardan additional amount not to exceed ten thousand dollars ($10,000.00) to thevictim to cover future lost wages, special medical needs and any other specialassistance needed as a result of the injury. The additional award may be madeonly for losses and expenses occurring within twenty-four (24) months after thedate of the injury.

 

1-40-110. Compensation award.

 

(a) If a person is injured or killed by a criminal act, thedivision may order the payment of compensation in accordance with this act for:

 

(i) Expenses actually and reasonably incurred as a result ofthe personal injury or death of the victim, by the victim, his dependent, orany person responsible for the victim's maintenance;

 

(ii) Loss of earning power as a result of the victim's total orpartial incapacity;

 

(iii) Economic loss to the deceased victim's dependents; and

 

(iv) Any other loss resulting from the personal injury or deathof the victim which the division determines to be reasonable.

 

(b) In determining whether to award compensation under thisact, the division shall consider:

 

(i) All circumstances surrounding the victim's conductdetermined to be relevant which directly contributed to the victim's injury ordeath;

 

(ii) Need for financial aid; and

 

(iii) Any other relevant matters.

 

(c) The division shall not consider whether the allegedassailant has been apprehended, prosecuted or convicted, nor the result of anycriminal proceedings against him.

 

(d) The crime victims compensation account is not a statehealth program and is not intended to be used as a primary payor to otherhealth care assistance programs, but is a public, quasi-charitable fund whosefundamental purpose is to assist victims of violent crimes through a period offinancial hardship as a payor of last resort. Payment made in accordance withthis section shall be considered payment of last resort that follows all othersources and is provided subsequent to all other benefits. Accordingly, indetermining the amount of compensation to be allowed by order, the divisionshall consider amounts received or receivable from any other source or sourcesby the victim or his dependents as a result of the incident or offense givingrise to the application. The division shall not deny compensation solelybecause the applicant is entitled to income from a collateral source.

 

1-40-111. Emergency awards; limitation.

 

(a) The division may grant an emergency award prior to theholding of a hearing, if upon application of a person eligible forcompensation, the division determines undue hardship will result to theapplicant if immediate payment is not made.

 

(b) The amount of the emergency award shall be dependent on theapplicant's immediate and verifiable needs as a result of loss of income orsupport, for emergency medical treatment, or for funeral and burial expenses. The amount of an emergency award to an applicant shall not exceed one thousanddollars ($1,000.00).

 

(c) Any emergency award granted under this section shall bededucted from the final compensation award made to the applicant. The excessof the amount of any emergency award over the amount of the final award, or thefull amount of the emergency award if no final award is made shall be repaid tothe division by the applicant.

 

1-40-112. Recovery from offender; restitution.

 

(a) If an order for the payment of compensation for personalinjury or death is made under this act, the state, upon payment of the amountof the order, shall be subrogated to any right of action the victim ordependent of the victim has against the person or persons responsible for theinjury or death, and the state may bring an action against the responsibleperson for the amount of the damages the applicant sustained.

 

(b) The applicant or other recipient shall give written noticeto the division of the making of a claim or demand or the filing of a suit forthe damages specified in subsection (a) of this section.

 

(c) Restitution by an offender under W.S. 7-9-101 through 7-9-112shall:

 

(i) To the extent compensation is paid under this act, be paidto the division, deposited in the account and be set off against a judgment infavor of the state in a civil action arising out of the same facts or event;

 

(ii) Reduce by like amount any compensation subsequently paidunder this act arising out of the same facts or event.

 

(d) Repealed By Laws 1997, ch. 152, 2.

 

(e) Repealed By Laws 1997, ch. 152, 2.

 

(f) Repealed By Laws 1997, ch. 152, 2.

 

(g) Any payment of benefits to, or on behalf of, a victim orother claimant under this act creates a debt due and owing to the state by anyperson found, in a criminal court proceeding in which he is a party, to havecommitted the criminal act. Payment of the debt shall be a condition ofprobation or parole:

 

(i) In making payment of the debt a condition of probation orparole, the court or state board of parole shall set the schedule or amounts ofpayments, subject to modification based on change of circumstances;

 

(ii) If the court or board does not order payment of the debt,or orders only partial payment, it shall state on the record the reasonstherefor.

 

1-40-113. Waivers and releases void; exemption from creditors' claims.

 

Anyagreement by an individual to waive, release or commute his rights under thisact is void. Compensation due under this act may not be assigned, pledged,encumbered, released or commuted. Compensation under this act is exempt fromall claims of creditors and from levy, execution and attachment or other remedyfor recovery or collection of a debt, except that compensation for an allowableexpense is not exempt from a claim of a creditor to the extent that creditorprovided products, services or accommodations, the costs of which are includedin the compensation award.

 

1-40-114. Crime victims' compensation account.

 

(a) There is established an account to be known as the crimevictims' compensation account. The account is under the administration andcontrol of the division for purposes of providing compensation or otherbenefits to crime victims and for purposes of implementing this act. Theaccount shall consist of all monies the division receives or collects from anysource and all monies shall be paid to the state treasurer for deposit in theaccount. The division may accept, and shall deposit to the account, any gifts,contributions, donations, grants or federal funds specifically given to thedivision for the benefit of victims of crime.

 

(b) The monies within the account may be withdrawn therefrom byvouchers signed by the director of the division or his designee. The divisionshall keep detailed permanent records of all monies credited to the account andall expenditures and disbursements from the account.

 

1-40-115. Informing victims of program and application procedure.

 

Eachlaw enforcement and prosecuting agency, and any victim witness program orfamily violence advocate funded in whole or in part with state or federalfunds, shall exercise reasonable care to insure that victims of crimes areinformed of the existence of the state program of compensation for death orinjuries sustained by victims of crime and the procedure for applying forcompensation under this act.

 

1-40-116. Fees not chargeable.

 

Nofee shall be charged to the applicant in any proceeding under this act exceptas provided by this act. If the applicant is represented by counsel in makingapplication under this act or in any further proceedings provided for in thischapter, the counsel shall not receive payment for his services except anamount as the division determines to be reasonable.

 

1-40-117. Falsifying, destroying or concealment of division records;furnishing false information or failing to disclose; other violations.

 

(a) Any agent or employee of the division who knowingly makes afalse entry or falsely alters any division record, or who intentionallydestroys, mutilates, conceals, removes or otherwise impairs the verity oravailability of any division record with the knowledge of a lack of authorityto do so, or who possesses a division record and refuses to deliver up thatrecord upon proper request of a person lawfully entitled to receive it isguilty of a misdemeanor.

 

(b) Any violation of this chapter for which a penalty is nototherwise provided is a misdemeanor.

 

1-40-118. Distribution of monies to crime victim service and victimassistance providers.

 

(a) In addition to any other powers specified in this act thedivision shall oversee the distribution of federal and state funds under itscontrol, to eligible crime victim service providers, including funds receivedunder the federal Victims of Crime Act of 1984.

 

(b) For purposes of this section "crime victim serviceprovider" means any program operated by a public agency or nonprofitorganization or any combination thereof which provides comprehensive servicesto victims of crime, including but not limited to:

 

(i) Crisis intervention services;

 

(ii) Informing victims and witnesses of the case status andprogress;

 

(iii) Assistance in participating in criminal justiceproceedings;

 

(iv) Performing advocate duties for crime victims;

 

(v) Assisting victims in recovering property damaged or stolenand in obtaining restitution or compensation for medical and other expensesincurred as a result of crime;

 

(vi) Developing community resources to assist victims of crime;

 

(vii) Assisting victims of crime in the preparation andpresentation of claims under the Crime Victims Compensation Act.

 

(c) In establishing priorities the division shall followrequirements regarding prioritization that are established by the fundingauthority.

 

(d) The division shall by rule establish a method fordistributing monies to crime victim service providers. The division's rulesand regulations shall reflect the following factors in determining thedistribution formula: population, needs assessment, regional cost differencesand any requirements promulgated by the granting source.

 

(i) Repealed By Laws 1998, ch. 81, 3.

 

(ii) Repealed By Laws 1998, ch. 81, 3.

 

(iii) Repealed By Laws 1998, ch. 81, 3.

 

(e) In determining whether a victim service provider iseligible to receive grants under subsection (d) of this section, the primaryconsideration shall be whether the eligibility requirements of the grantingsource are met, including the provider's agreement to submit an annualunduplicated count of the number of victims served in accordance with rules andregulations promulgated by the division.

 

(i) Repealed By Laws 1998, ch. 81, 3.

 

(ii) Repealed By Laws 1998, ch. 81, 3.

 

(f) Funds distributed under this section shall supplement, notsupplant, existing victim or witness programs throughout the state.

 

(g) To the extent the legislature provides funding for victimassistance providers that serve victims of all crimes, the division of victimservices shall:

 

(i) Distribute the state funding provided for victim assistanceproviders as follows:

 

(A) No less than two percent (2%) of the total amount of statefunding shall be distributed to each county and the Wind River IndianReservation for victim assistance providers within the county or within theWind River Indian Reservation that meet the requirements established by thedivision of victim services;

 

(B) Of the remaining state funding under this subsection,amounts shall be distributed to the victim assistance providers within thecounties and the Wind River Indian Reservation on a proportional basisaccording to each county's and the reservation's population. For purposes ofthe distribution under this subparagraph, the population residing on the WindRiver Indian Reservation shall be determined separate from the balance of thepopulation of Fremont county;

 

(C) If funds have been returned to the division pursuant tounfulfilled contracts under this subsection at the end of the fiscal year,prior to reversion pursuant to W.S. 9-2-1008, 9-2-1012(e) and 9-4-207(a), a lawenforcement agency that has carried out a clandestine laboratory operationremediation may apply for compensation under this subsection for anyremediation expenses not otherwise collected pursuant to W.S. 35-9-158(a). Themaximum amount payable pursuant to this subsection to a law enforcement agencythat has carried out a clandestine laboratory operation remediation shall bethe amount set forth in the court approved expense report as provided underW.S. 35-9-158(a) minus amounts collected from other sources pursuant to W.S.35-9-158(a).

 

(ii) Require victim assistance providers to:

 

(A) Provide the services specified under subsection (a) of thissection;

 

(B) Advocate to ensure victims are allowed to exercise theirrights under the victims bill of rights established in W.S. 1-40-203;

 

(C) Submit their long-term strategic plans to the division ofvictim services for approval.

 

(iii) Establish minimum program standards and uniform reportingprocedures for victim assistance providers that receive state funding underthis subsection through rules and regulations adopted in accordance with W.S.9-1-638(a)(vii).

 

1-40-119. Surcharge to be assessed in certain criminal cases; paid toaccount.

 

(a) In addition to any fine or other penalty prescribed by law,a defendant who pleads guilty or nolo contendere to, or is convicted of, thefollowing criminal offenses shall be assessed a surcharge of not less than onehundred dollars ($100.00) nor more than three hundred dollars ($300.00) for theoffenses specified in paragraph (v) of this subsection, not less than onehundred fifty dollars ($150.00) nor more than three hundred fifty dollars ($350.00)for the first plea to or conviction of offenses specified in paragraphs (i)through (iv) of this subsection, and not less than two hundred dollars($200.00) nor more than four hundred dollars ($400.00) for each subsequent pleato or conviction of offenses specified in paragraphs (i) through (iv) of thissubsection:

 

(i) Any crime enumerated in W.S. 6-1-101 through 6-10-203;

 

(ii) Any violation of W.S. 31-5-225, 31-5-229, 31-5-233 or41-13-220(a);

 

(iii) Any violation of W.S. 35-7-1001 through 35-7-1057;

 

(iv) Any violation of W.S. 6-2-314 through 6-2-318;

 

(v) Any violation of a municipal ordinance which hassubstantially similar elements to the criminal offenses specified in paragraphs(ii) through (iv) of this subsection or any other violation of a municipalordinance which causes actual damage to persons or property.

 

(b) The surcharge enumerated in subsection (a) of this sectionshall be imposed upon any defendant for whom prosecution, trial or sentence isdeferred under W.S. 7-13-301 and 7-13-302 or who participates in any otherdiversion agreement.

 

(c) Under no circumstances shall a court fail to impose thesurcharge required by subsections (a) and (b) of this section if the courtdetermines the defendant has an ability to pay or that a reasonable probabilityexists that the defendant will have an ability to pay.

 

(d) The surcharge shall be paid within ten (10) days ofimposition unless the court determines that it shall be paid in installmentsover a reasonable period of time. Failure to comply with the provisions forpayment of the surcharge is punishable as contempt of court. Contemptproceedings or other proceedings to collect the surcharge may be initiated bythe prosecuting attorney, by the court on its own motion or by the division.

 

(e) Monies paid to the court by a defendant shall be applied tothe surcharge before being applied to any fine, penalty, cost or assessmentimposed upon the defendant. The proceeds from the surcharge imposed by thissection shall be remitted promptly by the clerk of the court to the divisionfor deposit in the account.

 

ARTICLE 2 - VICTIM AND WITNESS BILL OF RIGHTS

 

1-40-201. Short title.

 

Thisact may be cited as the "victims bill of rights".

 

1-40-202. Definitions.

 

(a) As used in this act:

 

(i) "Criminal act" means conduct which wouldconstitute a crime as defined by the laws of this state;

 

(ii) "Victim" means an individual who has suffereddirect or threatened physical, emotional or financial harm as the result of thecommission of a criminal act or a family member of a victim who is a minor oran incompetent or a surviving family member of a homicide victim;

 

(iii) "Witness" means a person who is likely to testifyin a criminal proceeding;

 

(iv) "Key witness" means any witness identified inwriting by the prosecution as being entitled to the rights provided by thisact;

 

(v) "This act" means W.S. 1-40-201 through 1-40-210.

 

1-40-203. Victim and witness bill of rights.

 

(a) All victims and witnesses of crime shall be treated withcompassion, respect and sensitivity.

 

(b) Crime victims, key witnesses and, upon request, otherwitnesses shall have the following rights:

 

(i) To be provided notification and information about eventsaffecting the status of the case. These events shall include, but are notlimited to, the following as specified in W.S. 1-40-204:

 

(A) The general status of the case, provided the release ofinformation does not compromise the investigation or endanger witnesses;

 

(B) The scheduled hearings and dispositions of the case;

 

(C) The sentencing phase of the case;

 

(D) The imprisonment or release of the accused or convicteddefendant.

 

(ii) To be provided information about the right to receivejudicially ordered restitution as provided in W.S. 7-9-102;

 

(iii) To be provided information about their rights, privilegesand interests under this act as provided in W.S. 1-40-204;

 

(iv) To be provided information about compensation availableunder the Crime Victims Compensation Act as provided in W.S. 1-40-101 through1-40-119;

 

(v) To be provided information about services and assistanceavailable to victims and witnesses as provided in W.S. 1-40-204;

 

(vi) To be provided information about available legal recourseand other measures if subjected to threats or intimidation as provided in W.S.1-40-205;

 

(vii) To be provided, at the discretion of the prosecutingattorney or criminal justice personnel, reasonable protection and safetyimmediately before, during and after criminal justice proceedings;

 

(viii) To be provided with the names, official telephone numbersand official addresses of the primary law enforcement officer and prosecutorassigned to investigate the case;

 

(ix) To attend and participate in criminal justice systemproceedings as provided in W.S. 1-40-206;

 

(x) To have the accused brought to trial as provided in W.S.1-40-207. Nothing in this paragraph shall inhibit the ability of counsel forthe state and the defendant from entering into any negotiated disposition ofany charge or charges which have been levied against the accused;

 

(xi) To prompt return of property seized as evidence as providedin W.S. 1-40-208;

 

(xii) To be protected from discharge or discipline by an employerdue to involvement with the criminal justice process as provided in W.S.1-40-209;

 

(xiii) To be notified about the defendant's conviction as providedin W.S. 7-21-102(a);

 

(xiv) To be notified about the victim's opportunity to make avictim impact statement for use in the preparation of a presentence investigationreport concerning the defendant as provided in W.S. 7-21-102(a)(iii);

 

(xv) To be provided with the address and telephone number ofeach probation office which is to prepare the presentence investigation asprovided in W.S. 7-21-102(a)(iv);

 

(xvi) To be notified that the presentence investigation reportand any statement of the victim in the report will be made available to thedefendant as provided in W.S. 7-21-102(a)(v);

 

(xvii) To be notified about the opportunity to make an impact statementat sentencing as provided in W.S. 7-21-102(a); and

 

(xviii) To be notified of the time and place of the sentencingproceeding and any changes thereof as provided in W.S. 7-21-102(a)(vii).

 

(c) Courts shall enforce crime victim and witness rights underthis act to the extent the recognition of those rights do not conflict withconstitutional and statutory rights of the defendant.

 

1-40-204. Rights of victims and witnesses to be informed during thecriminal justice process.

 

(a) Victims of a criminal act shall be informed without unduedelay by law enforcement about:

 

(i) The rights enumerated in this act;

 

(ii) The right to be informed of the status of the case from theinitial police investigation to the final appellate review;

 

(iii) The fact that financial assistance or other social serviceoptions may be available to the victim;

 

(iv) The existence of the Crime Victims Compensation Act andthat compensation may be available to the victim;

 

(v) The right to have an interpreter or translator to informthe victim of these rights;

 

(vi) The name and official telephone number of the primary lawenforcement officer assigned to investigate the case together with the officialaddress and telephone number of the criminal justice agency investigating thecase;

 

(vii) The right to seek legal counsel and to employ an attorney.

 

(b) Victims and key witnesses of a criminal act shall beinformed in writing by the prosecuting attorney about:

 

(i) Subject to order of the court, the right to attend allhearings and proceedings involving the case, including the right to benotified, upon request, of the date, time and place of those hearings;

 

(ii) The right to be notified in advance, if reasonable, when acourt proceeding has been rescheduled or canceled;

 

(iii) The right to be advised of the potential for pleanegotiations and, prior to sentencing, the right to be informed of theexistence of a negotiated plea, the essentials of the agreement, and thereasons for the disposition;

 

(iv) The right to know the accused has obtained a pretrial orpresentence release;

 

(v) The right to discuss the case with the prosecutor, and theofficial address and official telephone number of the prosecutor;

 

(vi) The availability of other remedies, including the right toproceed in civil litigation generally and the right to any profits attributableto the offender as a result of publication or media coverage resulting from thecrime;

 

(vii) The fact that the attorneys involved and theirinvestigators are advocates either for the state or for the defendant;

 

(viii) The right to refuse to talk to attorneys, privateinvestigators, law enforcement, or anyone else unless on the witness stand orunder subpoena;

 

(ix) If known to the prosecutor, the schedule of any postsentence hearings affecting the probation of the offender;

 

(x) The right to provide an affidavit asserting acts or threatsof physical violence by the accused or at the accused's direction against thevictim or a relative of the victim, the survivor or designated key witness.

 

(c) Victims, key witnesses, offices of prosecutors, victimwitness coordinators and advocates who have participated in the criminalprosecution shall be offered the opportunity to be informed in writing by thedepartment of corrections about:

 

(i) The commencement of the offender's imprisonment to servethe sentence imposed and the name, official address and security classificationof the place of confinement;

 

(ii) The earliest date upon which the offender could be releasedand the date released;

 

(iii) Any transfer of the offender to another facility includingthe security classification of that facility;

 

(iv) Any work release of the offender and the assigned workrelease site;

 

(v) Any change in location of the offender's parolesupervision;

 

(vi) The escape, recapture or death of an offender;

 

(vii) Any reduction or extension of the offender's sentence.

 

(d) Victims, key witnesses, offices of prosecutors, victimwitness coordinators and advocates who have participated in the criminalprosecution shall be offered the opportunity to be informed in writing by theboard of parole about:

 

(i) Any decision to grant or modify parole and any conditionsimposed;

 

(ii) Any pending revocation of parole, any associated return tocustody, the revocation hearing date and disposition of revocation proceedings;

 

(iii) Any absconscion from supervision and subsequentapprehension;

 

(iv) Any rescission of parole;

 

(v) Discharge from parole.

 

(e) The governor's office shall ensure that the appropriategovernment agency shall notify in writing, or in person, victims, keywitnesses, prosecutors, victim witness coordinators and advocates who haveparticipated in the criminal prosecution of an application for a pardon or thepending commutation of the offender.

 

(f) Victims, key witnesses, prosecutors, victim witnesscoordinators and advocates who have participated in the criminal prosecutionwho wish to receive notification and information shall provide the appropriatecriminal justice agencies with their current address and telephone number. This address will only be used for notification purposes.

 

(g) Nothing in subsections (c) through (e) of this sectionshall mean the victim, key witnesses, prosecutors, victim witness coordinatorsor advocates who have participated in the criminal prosecution shall be giveninformation that could jeopardize the safety or security of any person.

 

1-40-205. Victims and witnesses of crime; free from intimidation.

 

(a) A victim or witness has the right to be free from any formof harassment, intimidation or retribution.

 

(b) When waiting to testify in any proceeding regarding acriminal act, a victim or key witness has the right to be provided, uponrequest, with a waiting area separate from other witnesses.

 

(c) When the threat of harassment, intimidation or retributioncannot be avoided, the court shall take appropriate measures to protect thevictim or key witness.

 

(d) Law enforcement officers and prosecuting attorneys shallprovide information regarding law enforcement measures available to protectvictims and key witnesses.

 

1-40-206. Victims of crime; present in court.

 

Unlessthe court for good cause shown shall find to the contrary, the victim, thevictim's designee or both shall have the right to be present at all trialproceedings which may be attended by the defendant.

 

1-40-207. Victims; timing of trial of accused.

 

(a) The court shall consider the victim's interest andcircumstances when setting any date for trial or in granting or denyingcontinuances.

 

(b) Nothing in this section shall infringe upon any rights ofthe accused in a criminal case or inhibit the ability of the prosecution anddefense from entering into any agreement as to trial setting or negotiateddisposition of any charge or charges pending against the defendant.

 

1-40-208. Prompt return of property.

 

(a) Victims and witnesses have the right to have any personalproperty, which is not contraband, promptly returned and any real estate,subject to declaration as uninhabitable under W.S. 35-9-156(d), released to thecontrol of the real estate owner, provided it does not interfere withprosecution, trial or appellate review of the case.

 

(b) Criminal justice agencies shall work together to expeditethe return of property when it is no longer needed. Prosecuting attorneys shallpromptly notify law enforcement agencies when evidence is no longer needed.

 

(c) The trial court exercising jurisdiction over a criminalproceeding shall, if requested, enter appropriate orders to implement theprovisions of this section.

 

1-40-209. Victims and witnesses have a right to preservation ofemployment.

 

(a) A victim or witness who responds to a subpoena from eitherthe prosecution or defense in a criminal case during working hours shall notsuffer any change in terms of employment solely because of the act ofresponding to a subpoena.

 

(b) A victim or witness, upon request, shall be assisted by lawenforcement agencies, the prosecuting attorney or defense attorney in informingan employer that the need for victim or witness cooperation may necessitate theabsence of the victim or witness from work.

 

(c) A victim or witness, who as a direct result of a criminalact or of cooperation with law enforcement agencies, prosecuting attorney ordefense attorney, experiences financial hardship, shall be assisted by thoseagencies, the prosecuting attorney or defense attorney in explaining toemployers and creditors the reasons for that financial hardship.

 

1-40-210. No civil liability created; testimony inadmissible; norelief by appeal.

 

(a) Nothing in this act shall be construed to create any civilcause of action for monetary damages against any person nor shall it constitutegrounds for any claim or motion raised by either the state or defendant in anyproceedings.

 

(b) Testimony or argument regarding the compliance ornoncompliance with this act is inadmissible in any criminal trial.

 

(c) The failure of a victim, designee or any criminal justiceagency personnel to exercise or enforce any right granted by the provisions ofthis act shall not be grounds for relief during proceedings or for any appealof a conviction by a defendant or grounds for any court to set aside, reverseor remand a criminal conviction.

 

ARTICLE 3 - COMPENSATION FROM BENEFITS OFCRIME

 

1-40-301. Compensation from benefits of crime.

 

Thelegislature finds that the state has a compelling interest in preventing anyperson who is convicted of a criminal act from profiting from the criminal actand in recompensing victims of the criminal act. It is therefore the intent ofthe legislature to provide a mechanism whereby any profits from a criminal actthat are received by the person convicted of the criminal act are available asrestitution to the victims of the criminal act.

 

1-40-302. Definitions.

 

(a) As used in this article:

 

(i) Repealed By Laws 1998, ch. 81, 3.

 

(ii) "Criminal act" means a conviction of an offenseas defined by W.S. 1-40-202(a)(i);

 

(iii) "Escrow account" means an account created underW.S. 1-40-303(a);

 

(iv) "Profits from the crime" means:

 

(A) Any property obtained through or income generated from thecommission of the criminal act of which the defendant was convicted;

 

(B) Any property obtained by or income generated from the sale,conversion or exchange of proceeds of the criminal act of which the defendantwas convicted, including any gain realized by the sale, conversion or exchange;and

 

(C) Any property that the defendant obtained or incomegenerated as a result of having committed the criminal act of which thedefendant was convicted, including any assets obtained through the use ofunique knowledge obtained during the commission of, or in preparation for thecommission of, the criminal act, as well as any property obtained by or incomegenerated from the sale, conversion or exchange of such property and any gainrealized by such sale, conversion or exchange.

 

(v) "Victim" means as defined by W.S.1-40-202(a)(ii);

 

(vi) "Division" means the victim services divisionwithin the office of the attorney general, created by W.S. 9-1-636.

 

1-40-303. Distribution of profits from crime.

 

(a) Any person who contracts with a defendant convicted of acriminal act in this state, or the defendant's representative or assignee, forpayment of any profits from the criminal act of which the defendant isconvicted shall pay to the division any money that would otherwise by terms ofthe contract be paid to the defendant or the defendant's representatives orassignees. The division shall deposit the money in an escrow account for thebenefit of any victim of the criminal act of which the defendant was convicted.

 

(b) Notwithstanding any other applicable statute oflimitations, any person who is a victim of the criminal act from which adefendant receives profits under subsection (a) of this section may, withinfive (5) years of the establishment of the escrow account:

 

(i) Enforce any order of restitution entered against thedefendant against the monies on deposit in the escrow account; or

 

(ii) Bring a civil action in a court of competent jurisdictionto recover a judgment against the defendant or the defendant's representativesor designees and enforce the judgment against monies on deposit in the escrowaccount.

 

(c) Upon establishing an escrow account pursuant to subsection(a) of this section, the division shall notify, at their last known address,all known victims of the criminal act of the establishment of the escrowaccount. The notice shall specify the existence of the escrow account, theamount on deposit and the victim's right to execute an order of restitution orbring a civil action to recover against the monies in the escrow account withinfive (5) years of the date the escrow account is established.

 

(d) The attorney general is authorized to bring any actionnecessary to enforce subsection (a) of this section. If the attorney generalprevails in an action under this subsection, the court shall order the paymentfrom the monies recovered to the attorney general of reasonable costs andattorney's fees.

 

1-40-304. Notification of division.

 

Itshall be the responsibility of the victim, the victim's attorney, or thevictim's representative to notify the division of the filing of any civilaction under W.S. 1-40-303(b)(ii).

 

1-40-305. Disbursal of compensation; more than one claim.

 

(a) The division shall not disburse any compensation from theescrow account until the later of:

 

(i) Five (5) years after the escrow account is established; or

 

(ii) The date all civil actions of which the division has actualknowledge and that are filed within the five (5) year period provided by W.S.1-40-303(b)(ii) have been settled or reduced to judgment.

 

(b) If more than one (1) claim against the monies in escrow isfiled pursuant to W.S. 1-40-303(b)(i) or (ii), the division shall disbursepayments from the escrow account on a pro rata basis.

 

1-40-306. Actions null and void.

 

Anyaction taken by a defendant who is convicted of a criminal act or who enters aplea of guilty, whether by way of the execution of a power of attorney, thecreation of corporate entities or any other action, to defeat the purpose ofthis article shall be null and void as against the public policy of this state.

 

1-40-307. Interest on monies in escrow account.

 

Interestearned on the monies deposited in an escrow account shall accrue to the benefitof the payees of the account.

 

1-40-308. Disbursal of unclaimed funds.

 

(a) Any unclaimed funds remaining in an escrow account afterthe disbursal period provided by W.S. 1-40-305(a) shall be forfeited and paidover to the crime victims compensation account created by W.S. 1-40-114 inaccordance with this section.

 

(b) If any unclaimed funds remain in an escrow account afterthe disbursal period provided by W.S. 1-40-305(a), the division shall seek anorder in district court to show cause why the funds should not be forfeited. Notice to the defendant and proceedings on the order to show cause shall beaccording to the Wyoming Rules of Civil Procedure, provided notice bypublication shall be once each week for two (2) consecutive weeks. The trialof the issues shall be by the court.

 

(c) On final hearing the order to show cause shall be taken asprima facie evidence that the funds constitute profits from the crime and issufficient for a judgment of forfeiture in the absence of other proof.

 

(d) In disputed cases the burden shall be upon the division toshow that there is a reasonable basis for believing that the funds constituteprofits from the crime.

 

(e) The proceedings and judgment of forfeiture shall be in remand shall be primarily against the property itself.

 

(f) Upon the entry of a judgment of forfeiture the court shallorder the funds paid over to the crime victims compensation account created byW.S. 1-40-114.

 

State Codes and Statutes

Statutes > Wyoming > Title1 > Chapter40

CHAPTER 40 - CRIME VICTIMS COMPENSATION

 

ARTICLE 1 - IN GENERAL

 

1-40-101. Short title.

 

Thisact is known and may be cited as the "Crime Victims CompensationAct".

 

1-40-102. Definitions.

 

(a) As used in this act:

 

(i) "Account" means the crime victims' compensationaccount established by W.S. 1-40-114;

 

(ii) Repealed By Laws 1998, ch. 81, 3.

 

(iii) "Criminal act" means an act committed orattempted in this state, including an act of domestic violence, whichconstitutes a crime as defined by the laws of this state or an act ofterrorism, as defined by 18 U.S.C. 2331 committed outside the United States,and which results in actual bodily injury, or actual mental harm, or death tothe victim. No act involving the operation of a motor vehicle, boat or aircraftwhich results in injury or death constitutes a crime for the purpose of thisact unless the injury or death was recklessly or intentionally inflictedthrough the use of the vehicle, boat or aircraft, or unless the act constitutesa violation of W.S. 31-5-233;

 

(iv) "Dependent" means any relative of the victim whowas wholly or partially dependent upon the victim's income at the time of hisinjury or death and includes the child of the victim born after his death;

 

(v) "Economic loss" means and includes medical andhospital expenses, loss of earnings, loss of future earnings resulting from theinjury, funeral and burial expenses and loss of support to the dependents ofthe victim to include home maintenance and child care;

 

(vi) "Medical expense" includes the cost of allmedical and dental services, mental health counseling and care, dental andprosthetic devices, eyeglasses or other corrective lenses, and servicesrendered in accordance with any method of healing recognized by the law of thisstate;

 

(vii) "Personal injury" means actual bodily injury oractual mental harm;

 

(viii) "Relative of the victim" means his spouse,parent, grandparent, stepparent, child including natural born child, stepchildor adopted child, grandchild, brother or sister;

 

(ix) "Victim" means:

 

(A) A person who suffers personal injury or is killed in thisstate as a direct result of:

 

(I) A criminal act of another person;

 

(II) The person's good faith and reasonable effort in attemptingto prevent the commission of a criminal act, or to apprehend a person engagingin a criminal act or assisting a law enforcement officer to do so;

 

(III) Assisting or attempting to assist a person against whom acrime is being perpetrated or attempted;

 

(IV) A federal crime occurring in Wyoming.

 

(B) A resident who is a victim of a crime occurring outsidethis state if:

 

(I) The crime would be compensable had it occurred inside thisstate; and

 

(II) The crime occurred in a state which does not have a crimevictim compensation program, for which the victim is eligible as eligibility isset forth in W.S. 1-40-101 through 1-40-119.

 

(C) A resident of this state who is injured or killed by an actof terrorism, as defined by 18 U.S.C. 2331, committed outside the UnitedStates;

 

(D) Family members who are Wyoming residents and who havesuffered a pecuniary loss as a result of a terrorist attack in the UnitedStates, regardless of the actual victim's residency;

 

(E) A resident of this state who is a victim of a crimeinvolving terrorism occurring outside this state if:

 

(I) The crime would be compensable had it occurred within thisstate; and

 

(II) The resident of this state suffered a pecuniary loss as adirect result of the act of terrorism committed in another state of the UnitedStates.

 

(x) "Division" means the victim services divisionwithin the office of the attorney general, created by W.S. 9-1-636;

 

(xi) "Catastrophic injury" means any permanentdisability of limbs or functions as a result of being a victim of a crime;

 

(xii) "Clandestine laboratory operation remediation"means a remediation of a clandestine laboratory operation carried out by a lawenforcement agency acting as an emergency responder pursuant to W.S.35-9-152(a)(i).

 

1-40-103. Repealed By Laws 1998, ch. 81, 3.

 

1-40-104. Division powers and duties.

 

(a) The division shall:

 

(i) Hear and determine all matters relating to claims forcompensation;

 

(ii) Publish annually a report showing its fiscal transactionsfor the preceding year, the amount of its accumulated cash and securities and abalance sheet showing its financial condition by means of an actuarialevaluation of commission assets and liabilities;

 

(iii) Keep a true and accurate record of all its proceedings,which record is open to public inspection at all reasonable hours;

 

(iv) Promulgate reasonable rules and regulations necessary tocarry out the purpose of this act pursuant to the Wyoming AdministrativeProcedure Act;

 

(v) Perform any other functions necessary to carry out thepurpose of this act;

 

(vi) Hearings and final decisions on victim's compensationsawards conducted by the division shall be exempt from the WyomingAdministrative Procedure Act, including the provisions for judicial reviewunder W.S. 16-3-114 and 16-3-115.

 

(b) In addition to any other powers specified by law, thedivision is empowered to:

 

(i) Request access to any reports of investigations, medicalrecords or other data necessary to assist the division in making adetermination of eligibility for compensation under this act. Uponauthorization of the attorney general, law enforcement officials, stateagencies and local government units shall provide assistance or informationrequested by the division;

 

(ii) Publicize the availability of compensation and informationregarding the filing of claims;

 

(iii) Investigate claims;

 

(iv) Repealed By Laws 1998, ch. 81, 3.

 

(v) Subpoena witnesses, compel their attendance, require theproduction of records and other evidence, administer oaths or affirmations,conduct hearings and receive relevant evidence;

 

(vi) Apply for and accept and administer monies from the federalgovernment, its agencies and all other sources, public and private, forcarrying out any of its functions;

 

(vii) Collect, develop, analyze and maintain statisticalinformation, records and reports as the division determines relevant ornecessary to carry out its powers and duties pursuant to this act;

 

(viii) Afterexhausting all alternatives available in paragraphs (i), (iii), (v) and (vi) ofthis subsection, direct and pay for medical examinations ofvictims as the division determines necessary to verify claims of economic lossdue to injury;

 

(ix) Collect all monies authorized by this act to be collectedby the division; and

 

(x) Pay all compensation or other benefits that are determinedto be due under this act and under division rules and regulations.

 

(c) Repealed By Laws 1998, ch. 81, 3.

 

1-40-105. Repealed By Laws 1998, ch. 81, 3.

 

1-40-106. Eligibility for compensation.

 

(a) The victim or his dependent is entitled to compensationunder this act if:

 

(i) The victim suffered personal injury as a result of acriminal act;

 

(ii) Repealed by Laws 1989, ch. 233, 2.

 

(iii) The injury to or death of the victim was not attributableto his own wrongful act;

 

(iv) The appropriate law enforcement authorities were notifiedof the criminal act allegedly causing the injury to or death of the victim assoon as practical under the circumstance after perpetration of the offense andthe claimant cooperates with appropriate law enforcement authorities withrespect to the crime for which compensation is sought;

 

(v) The application for compensation is filed with the divisionwithin one (1) year after the date of the injury to or death of the victim, orwithin any extension of time the division allows for good cause shown; and

 

(vi) The owner of real estate has paid all claims forreimbursement pursuant to W.S. 35-9-158(a)(ii).

 

(b) No victim or dependent shall be denied compensation solelybecause:

 

(i) He is a relative of the offender or was living with theoffender as a family or household member at the time of the injury or death. However, the division may award compensation to a victim or dependent who is arelative, family or household member of the offender only if the division canreasonably determine the offender will receive no economic benefit or unjustenrichment from the compensation;

 

(ii) He is not a resident of the state.

 

(c) Any person who perpetrates any criminal act on the personof another or who is convicted of a felony after applying to the division forcompensation is not eligible or entitled to receive compensation under thisact.

 

1-40-107. Application for compensation; required information.

 

(a) The application for compensation shall be on a formfurnished by the division, setting forth:

 

(i) The victim's name and address;

 

(ii) If the victim is deceased, the claimant's name and addressand his relationship to the victim, the names and addresses of the victim'sdependents and the extent to which each is dependent;

 

(iii) The date and nature of the criminal act on which claim forcompensation is based;

 

(iv) The date and place where and the law enforcement officialsto whom notification of the criminal act was given;

 

(v) The nature and extent of the injuries the victim sustainedand the names and addresses of those giving medical and hospitalizationtreatment to the victim;

 

(vi) The economic loss to the applicant and to all other personsas specified under paragraph (a)(ii) of this section resulting from the injuryor death;

 

(vii) The amount and source of benefits, payments or awards, ifany, payable to the applicant and dependents;

 

(viii) Releases authorizing the surrender to the division of allreports, medical records and other information relating to the claim and crime;and

 

(ix) Any other information the division reasonably requires.

 

(b) The division may require that materials substantiating thefacts stated in the application be submitted with the application. If thedivision finds that an application does not contain the required information orthat the facts stated therein have not been substantiated, it shall notify theapplicant in writing of the specific additional items or information ormaterials required and that the applicant has thirty (30) days from the date ofthe notice in which to furnish those items to the division. The division shallreject the application of an applicant who although notified fails to file therequested information or substantiating materials within the time specifiedunless he requests, and the division grants, an extension of time in which tofurnish that information.

 

(c) An applicant may file an amended application or additionalsubstantiating materials to correct inadvertent errors or omissions at any timebefore the division disposes of the original application. In either case, thefiling of additional information or of an amended application shall beconsidered to have been filed at the same time as the original application.

 

(d) Information contained in the claim files and records ofvictims, which are subject to any privilege of confidentiality under Wyominglaw, shall remain confidential and shall not be open to public inspection. Theinformation shall be immune from legal process and shall not, without theconsent of the person furnishing the information, be admitted as evidence orused for any purpose in any action, suit or other judicial, legislative oradministrative proceeding.

 

1-40-108. Hearing; findings; order.

 

(a) Hearings shall be held on the application and are open tothe public unless the division determines that a closed hearing is necessarybecause:

 

(i) The alleged assailant or offender has not been brought totrial and a public hearing would adversely affect either his apprehension orhis trial;

 

(ii) The victim or alleged assailant is a minor;

 

(iii) An open hearing would cause trauma for the victim;

 

(iv) A public hearing would frustrate rather than further theinterest of justice.

 

(b) A record shall be kept of the proceedings of hearings heldbefore the division and shall include the division's findings of fact andconclusions of the amount of compensation, if any, to which the applicant andpersons dependent on a deceased victim are entitled. No part of the record ofany hearing before the division may be used for any purpose in a criminalproceeding except in the prosecution of a person alleged to have perjuredhimself in his testimony before the division.

 

(c) At the conclusion of the hearing, the division shall enteran order stating:

 

(i) Its findings of fact;

 

(ii) Its decision as to whether or not compensation is due underthis act and the amount of compensation due, if any;

 

(iii) Whether disbursement of the compensation awarded is to bemade in a lump sum or in periodic payments; and

 

(iv) The person or persons to whom the compensation should bepaid.

 

(d) If the division finds, in the case of an application madeby a person dependent for his support on a deceased victim, that persons otherthan the applicant were also dependent on that victim for their support, itshall also:

 

(i) Name those persons in its order;

 

(ii) State the percentage share of the total compensation awardand the dollar amount to which each is entitled; and

 

(iii) Order that those amounts be paid to those persons directlyor, in the case of a minor or incompetent, to his guardian or conservator, asthe case may be.

 

(e) Notwithstanding subsection (a) of this section, thedivision may promulgate rules providing for an expedited claims process forapplications in which eligibility is clear and all information has beenverified.

 

1-40-109. Standards for compensation.

 

(a) For the purpose of determining the amount of compensationpayable pursuant to this act, the division, insofar as practicable, shallformulate standards for uniform application of this act and shall take intoconsideration rates and amounts of compensation payable for injuries and deathunder other laws of this state and of the United States and the availability offunds under this act.

 

(b) Loss of earnings and loss of future earnings shall bedetermined on the basis of the victim's average monthly earnings for the six(6) months immediately preceding the date of the injury, or the current federalminimum wage, whichever is less.

 

(c) Loss of support shall be determined on the basis of thevictim's or defendant's average monthly earnings for the six (6) monthsimmediately preceding the date of the injury, or the current federal minimumwage, whichever is less.

 

(d) Except as provided in subsection (e) of this section, themaximum individual award of compensation paid to any victim or dependent shallnot exceed fifteen thousand dollars ($15,000.00).

 

(e) In addition to the maximum award authorized in subsection(d) of this section, in the case of catastrophic injury the division may awardan additional amount not to exceed ten thousand dollars ($10,000.00) to thevictim to cover future lost wages, special medical needs and any other specialassistance needed as a result of the injury. The additional award may be madeonly for losses and expenses occurring within twenty-four (24) months after thedate of the injury.

 

1-40-110. Compensation award.

 

(a) If a person is injured or killed by a criminal act, thedivision may order the payment of compensation in accordance with this act for:

 

(i) Expenses actually and reasonably incurred as a result ofthe personal injury or death of the victim, by the victim, his dependent, orany person responsible for the victim's maintenance;

 

(ii) Loss of earning power as a result of the victim's total orpartial incapacity;

 

(iii) Economic loss to the deceased victim's dependents; and

 

(iv) Any other loss resulting from the personal injury or deathof the victim which the division determines to be reasonable.

 

(b) In determining whether to award compensation under thisact, the division shall consider:

 

(i) All circumstances surrounding the victim's conductdetermined to be relevant which directly contributed to the victim's injury ordeath;

 

(ii) Need for financial aid; and

 

(iii) Any other relevant matters.

 

(c) The division shall not consider whether the allegedassailant has been apprehended, prosecuted or convicted, nor the result of anycriminal proceedings against him.

 

(d) The crime victims compensation account is not a statehealth program and is not intended to be used as a primary payor to otherhealth care assistance programs, but is a public, quasi-charitable fund whosefundamental purpose is to assist victims of violent crimes through a period offinancial hardship as a payor of last resort. Payment made in accordance withthis section shall be considered payment of last resort that follows all othersources and is provided subsequent to all other benefits. Accordingly, indetermining the amount of compensation to be allowed by order, the divisionshall consider amounts received or receivable from any other source or sourcesby the victim or his dependents as a result of the incident or offense givingrise to the application. The division shall not deny compensation solelybecause the applicant is entitled to income from a collateral source.

 

1-40-111. Emergency awards; limitation.

 

(a) The division may grant an emergency award prior to theholding of a hearing, if upon application of a person eligible forcompensation, the division determines undue hardship will result to theapplicant if immediate payment is not made.

 

(b) The amount of the emergency award shall be dependent on theapplicant's immediate and verifiable needs as a result of loss of income orsupport, for emergency medical treatment, or for funeral and burial expenses. The amount of an emergency award to an applicant shall not exceed one thousanddollars ($1,000.00).

 

(c) Any emergency award granted under this section shall bededucted from the final compensation award made to the applicant. The excessof the amount of any emergency award over the amount of the final award, or thefull amount of the emergency award if no final award is made shall be repaid tothe division by the applicant.

 

1-40-112. Recovery from offender; restitution.

 

(a) If an order for the payment of compensation for personalinjury or death is made under this act, the state, upon payment of the amountof the order, shall be subrogated to any right of action the victim ordependent of the victim has against the person or persons responsible for theinjury or death, and the state may bring an action against the responsibleperson for the amount of the damages the applicant sustained.

 

(b) The applicant or other recipient shall give written noticeto the division of the making of a claim or demand or the filing of a suit forthe damages specified in subsection (a) of this section.

 

(c) Restitution by an offender under W.S. 7-9-101 through 7-9-112shall:

 

(i) To the extent compensation is paid under this act, be paidto the division, deposited in the account and be set off against a judgment infavor of the state in a civil action arising out of the same facts or event;

 

(ii) Reduce by like amount any compensation subsequently paidunder this act arising out of the same facts or event.

 

(d) Repealed By Laws 1997, ch. 152, 2.

 

(e) Repealed By Laws 1997, ch. 152, 2.

 

(f) Repealed By Laws 1997, ch. 152, 2.

 

(g) Any payment of benefits to, or on behalf of, a victim orother claimant under this act creates a debt due and owing to the state by anyperson found, in a criminal court proceeding in which he is a party, to havecommitted the criminal act. Payment of the debt shall be a condition ofprobation or parole:

 

(i) In making payment of the debt a condition of probation orparole, the court or state board of parole shall set the schedule or amounts ofpayments, subject to modification based on change of circumstances;

 

(ii) If the court or board does not order payment of the debt,or orders only partial payment, it shall state on the record the reasonstherefor.

 

1-40-113. Waivers and releases void; exemption from creditors' claims.

 

Anyagreement by an individual to waive, release or commute his rights under thisact is void. Compensation due under this act may not be assigned, pledged,encumbered, released or commuted. Compensation under this act is exempt fromall claims of creditors and from levy, execution and attachment or other remedyfor recovery or collection of a debt, except that compensation for an allowableexpense is not exempt from a claim of a creditor to the extent that creditorprovided products, services or accommodations, the costs of which are includedin the compensation award.

 

1-40-114. Crime victims' compensation account.

 

(a) There is established an account to be known as the crimevictims' compensation account. The account is under the administration andcontrol of the division for purposes of providing compensation or otherbenefits to crime victims and for purposes of implementing this act. Theaccount shall consist of all monies the division receives or collects from anysource and all monies shall be paid to the state treasurer for deposit in theaccount. The division may accept, and shall deposit to the account, any gifts,contributions, donations, grants or federal funds specifically given to thedivision for the benefit of victims of crime.

 

(b) The monies within the account may be withdrawn therefrom byvouchers signed by the director of the division or his designee. The divisionshall keep detailed permanent records of all monies credited to the account andall expenditures and disbursements from the account.

 

1-40-115. Informing victims of program and application procedure.

 

Eachlaw enforcement and prosecuting agency, and any victim witness program orfamily violence advocate funded in whole or in part with state or federalfunds, shall exercise reasonable care to insure that victims of crimes areinformed of the existence of the state program of compensation for death orinjuries sustained by victims of crime and the procedure for applying forcompensation under this act.

 

1-40-116. Fees not chargeable.

 

Nofee shall be charged to the applicant in any proceeding under this act exceptas provided by this act. If the applicant is represented by counsel in makingapplication under this act or in any further proceedings provided for in thischapter, the counsel shall not receive payment for his services except anamount as the division determines to be reasonable.

 

1-40-117. Falsifying, destroying or concealment of division records;furnishing false information or failing to disclose; other violations.

 

(a) Any agent or employee of the division who knowingly makes afalse entry or falsely alters any division record, or who intentionallydestroys, mutilates, conceals, removes or otherwise impairs the verity oravailability of any division record with the knowledge of a lack of authorityto do so, or who possesses a division record and refuses to deliver up thatrecord upon proper request of a person lawfully entitled to receive it isguilty of a misdemeanor.

 

(b) Any violation of this chapter for which a penalty is nototherwise provided is a misdemeanor.

 

1-40-118. Distribution of monies to crime victim service and victimassistance providers.

 

(a) In addition to any other powers specified in this act thedivision shall oversee the distribution of federal and state funds under itscontrol, to eligible crime victim service providers, including funds receivedunder the federal Victims of Crime Act of 1984.

 

(b) For purposes of this section "crime victim serviceprovider" means any program operated by a public agency or nonprofitorganization or any combination thereof which provides comprehensive servicesto victims of crime, including but not limited to:

 

(i) Crisis intervention services;

 

(ii) Informing victims and witnesses of the case status andprogress;

 

(iii) Assistance in participating in criminal justiceproceedings;

 

(iv) Performing advocate duties for crime victims;

 

(v) Assisting victims in recovering property damaged or stolenand in obtaining restitution or compensation for medical and other expensesincurred as a result of crime;

 

(vi) Developing community resources to assist victims of crime;

 

(vii) Assisting victims of crime in the preparation andpresentation of claims under the Crime Victims Compensation Act.

 

(c) In establishing priorities the division shall followrequirements regarding prioritization that are established by the fundingauthority.

 

(d) The division shall by rule establish a method fordistributing monies to crime victim service providers. The division's rulesand regulations shall reflect the following factors in determining thedistribution formula: population, needs assessment, regional cost differencesand any requirements promulgated by the granting source.

 

(i) Repealed By Laws 1998, ch. 81, 3.

 

(ii) Repealed By Laws 1998, ch. 81, 3.

 

(iii) Repealed By Laws 1998, ch. 81, 3.

 

(e) In determining whether a victim service provider iseligible to receive grants under subsection (d) of this section, the primaryconsideration shall be whether the eligibility requirements of the grantingsource are met, including the provider's agreement to submit an annualunduplicated count of the number of victims served in accordance with rules andregulations promulgated by the division.

 

(i) Repealed By Laws 1998, ch. 81, 3.

 

(ii) Repealed By Laws 1998, ch. 81, 3.

 

(f) Funds distributed under this section shall supplement, notsupplant, existing victim or witness programs throughout the state.

 

(g) To the extent the legislature provides funding for victimassistance providers that serve victims of all crimes, the division of victimservices shall:

 

(i) Distribute the state funding provided for victim assistanceproviders as follows:

 

(A) No less than two percent (2%) of the total amount of statefunding shall be distributed to each county and the Wind River IndianReservation for victim assistance providers within the county or within theWind River Indian Reservation that meet the requirements established by thedivision of victim services;

 

(B) Of the remaining state funding under this subsection,amounts shall be distributed to the victim assistance providers within thecounties and the Wind River Indian Reservation on a proportional basisaccording to each county's and the reservation's population. For purposes ofthe distribution under this subparagraph, the population residing on the WindRiver Indian Reservation shall be determined separate from the balance of thepopulation of Fremont county;

 

(C) If funds have been returned to the division pursuant tounfulfilled contracts under this subsection at the end of the fiscal year,prior to reversion pursuant to W.S. 9-2-1008, 9-2-1012(e) and 9-4-207(a), a lawenforcement agency that has carried out a clandestine laboratory operationremediation may apply for compensation under this subsection for anyremediation expenses not otherwise collected pursuant to W.S. 35-9-158(a). Themaximum amount payable pursuant to this subsection to a law enforcement agencythat has carried out a clandestine laboratory operation remediation shall bethe amount set forth in the court approved expense report as provided underW.S. 35-9-158(a) minus amounts collected from other sources pursuant to W.S.35-9-158(a).

 

(ii) Require victim assistance providers to:

 

(A) Provide the services specified under subsection (a) of thissection;

 

(B) Advocate to ensure victims are allowed to exercise theirrights under the victims bill of rights established in W.S. 1-40-203;

 

(C) Submit their long-term strategic plans to the division ofvictim services for approval.

 

(iii) Establish minimum program standards and uniform reportingprocedures for victim assistance providers that receive state funding underthis subsection through rules and regulations adopted in accordance with W.S.9-1-638(a)(vii).

 

1-40-119. Surcharge to be assessed in certain criminal cases; paid toaccount.

 

(a) In addition to any fine or other penalty prescribed by law,a defendant who pleads guilty or nolo contendere to, or is convicted of, thefollowing criminal offenses shall be assessed a surcharge of not less than onehundred dollars ($100.00) nor more than three hundred dollars ($300.00) for theoffenses specified in paragraph (v) of this subsection, not less than onehundred fifty dollars ($150.00) nor more than three hundred fifty dollars ($350.00)for the first plea to or conviction of offenses specified in paragraphs (i)through (iv) of this subsection, and not less than two hundred dollars($200.00) nor more than four hundred dollars ($400.00) for each subsequent pleato or conviction of offenses specified in paragraphs (i) through (iv) of thissubsection:

 

(i) Any crime enumerated in W.S. 6-1-101 through 6-10-203;

 

(ii) Any violation of W.S. 31-5-225, 31-5-229, 31-5-233 or41-13-220(a);

 

(iii) Any violation of W.S. 35-7-1001 through 35-7-1057;

 

(iv) Any violation of W.S. 6-2-314 through 6-2-318;

 

(v) Any violation of a municipal ordinance which hassubstantially similar elements to the criminal offenses specified in paragraphs(ii) through (iv) of this subsection or any other violation of a municipalordinance which causes actual damage to persons or property.

 

(b) The surcharge enumerated in subsection (a) of this sectionshall be imposed upon any defendant for whom prosecution, trial or sentence isdeferred under W.S. 7-13-301 and 7-13-302 or who participates in any otherdiversion agreement.

 

(c) Under no circumstances shall a court fail to impose thesurcharge required by subsections (a) and (b) of this section if the courtdetermines the defendant has an ability to pay or that a reasonable probabilityexists that the defendant will have an ability to pay.

 

(d) The surcharge shall be paid within ten (10) days ofimposition unless the court determines that it shall be paid in installmentsover a reasonable period of time. Failure to comply with the provisions forpayment of the surcharge is punishable as contempt of court. Contemptproceedings or other proceedings to collect the surcharge may be initiated bythe prosecuting attorney, by the court on its own motion or by the division.

 

(e) Monies paid to the court by a defendant shall be applied tothe surcharge before being applied to any fine, penalty, cost or assessmentimposed upon the defendant. The proceeds from the surcharge imposed by thissection shall be remitted promptly by the clerk of the court to the divisionfor deposit in the account.

 

ARTICLE 2 - VICTIM AND WITNESS BILL OF RIGHTS

 

1-40-201. Short title.

 

Thisact may be cited as the "victims bill of rights".

 

1-40-202. Definitions.

 

(a) As used in this act:

 

(i) "Criminal act" means conduct which wouldconstitute a crime as defined by the laws of this state;

 

(ii) "Victim" means an individual who has suffereddirect or threatened physical, emotional or financial harm as the result of thecommission of a criminal act or a family member of a victim who is a minor oran incompetent or a surviving family member of a homicide victim;

 

(iii) "Witness" means a person who is likely to testifyin a criminal proceeding;

 

(iv) "Key witness" means any witness identified inwriting by the prosecution as being entitled to the rights provided by thisact;

 

(v) "This act" means W.S. 1-40-201 through 1-40-210.

 

1-40-203. Victim and witness bill of rights.

 

(a) All victims and witnesses of crime shall be treated withcompassion, respect and sensitivity.

 

(b) Crime victims, key witnesses and, upon request, otherwitnesses shall have the following rights:

 

(i) To be provided notification and information about eventsaffecting the status of the case. These events shall include, but are notlimited to, the following as specified in W.S. 1-40-204:

 

(A) The general status of the case, provided the release ofinformation does not compromise the investigation or endanger witnesses;

 

(B) The scheduled hearings and dispositions of the case;

 

(C) The sentencing phase of the case;

 

(D) The imprisonment or release of the accused or convicteddefendant.

 

(ii) To be provided information about the right to receivejudicially ordered restitution as provided in W.S. 7-9-102;

 

(iii) To be provided information about their rights, privilegesand interests under this act as provided in W.S. 1-40-204;

 

(iv) To be provided information about compensation availableunder the Crime Victims Compensation Act as provided in W.S. 1-40-101 through1-40-119;

 

(v) To be provided information about services and assistanceavailable to victims and witnesses as provided in W.S. 1-40-204;

 

(vi) To be provided information about available legal recourseand other measures if subjected to threats or intimidation as provided in W.S.1-40-205;

 

(vii) To be provided, at the discretion of the prosecutingattorney or criminal justice personnel, reasonable protection and safetyimmediately before, during and after criminal justice proceedings;

 

(viii) To be provided with the names, official telephone numbersand official addresses of the primary law enforcement officer and prosecutorassigned to investigate the case;

 

(ix) To attend and participate in criminal justice systemproceedings as provided in W.S. 1-40-206;

 

(x) To have the accused brought to trial as provided in W.S.1-40-207. Nothing in this paragraph shall inhibit the ability of counsel forthe state and the defendant from entering into any negotiated disposition ofany charge or charges which have been levied against the accused;

 

(xi) To prompt return of property seized as evidence as providedin W.S. 1-40-208;

 

(xii) To be protected from discharge or discipline by an employerdue to involvement with the criminal justice process as provided in W.S.1-40-209;

 

(xiii) To be notified about the defendant's conviction as providedin W.S. 7-21-102(a);

 

(xiv) To be notified about the victim's opportunity to make avictim impact statement for use in the preparation of a presentence investigationreport concerning the defendant as provided in W.S. 7-21-102(a)(iii);

 

(xv) To be provided with the address and telephone number ofeach probation office which is to prepare the presentence investigation asprovided in W.S. 7-21-102(a)(iv);

 

(xvi) To be notified that the presentence investigation reportand any statement of the victim in the report will be made available to thedefendant as provided in W.S. 7-21-102(a)(v);

 

(xvii) To be notified about the opportunity to make an impact statementat sentencing as provided in W.S. 7-21-102(a); and

 

(xviii) To be notified of the time and place of the sentencingproceeding and any changes thereof as provided in W.S. 7-21-102(a)(vii).

 

(c) Courts shall enforce crime victim and witness rights underthis act to the extent the recognition of those rights do not conflict withconstitutional and statutory rights of the defendant.

 

1-40-204. Rights of victims and witnesses to be informed during thecriminal justice process.

 

(a) Victims of a criminal act shall be informed without unduedelay by law enforcement about:

 

(i) The rights enumerated in this act;

 

(ii) The right to be informed of the status of the case from theinitial police investigation to the final appellate review;

 

(iii) The fact that financial assistance or other social serviceoptions may be available to the victim;

 

(iv) The existence of the Crime Victims Compensation Act andthat compensation may be available to the victim;

 

(v) The right to have an interpreter or translator to informthe victim of these rights;

 

(vi) The name and official telephone number of the primary lawenforcement officer assigned to investigate the case together with the officialaddress and telephone number of the criminal justice agency investigating thecase;

 

(vii) The right to seek legal counsel and to employ an attorney.

 

(b) Victims and key witnesses of a criminal act shall beinformed in writing by the prosecuting attorney about:

 

(i) Subject to order of the court, the right to attend allhearings and proceedings involving the case, including the right to benotified, upon request, of the date, time and place of those hearings;

 

(ii) The right to be notified in advance, if reasonable, when acourt proceeding has been rescheduled or canceled;

 

(iii) The right to be advised of the potential for pleanegotiations and, prior to sentencing, the right to be informed of theexistence of a negotiated plea, the essentials of the agreement, and thereasons for the disposition;

 

(iv) The right to know the accused has obtained a pretrial orpresentence release;

 

(v) The right to discuss the case with the prosecutor, and theofficial address and official telephone number of the prosecutor;

 

(vi) The availability of other remedies, including the right toproceed in civil litigation generally and the right to any profits attributableto the offender as a result of publication or media coverage resulting from thecrime;

 

(vii) The fact that the attorneys involved and theirinvestigators are advocates either for the state or for the defendant;

 

(viii) The right to refuse to talk to attorneys, privateinvestigators, law enforcement, or anyone else unless on the witness stand orunder subpoena;

 

(ix) If known to the prosecutor, the schedule of any postsentence hearings affecting the probation of the offender;

 

(x) The right to provide an affidavit asserting acts or threatsof physical violence by the accused or at the accused's direction against thevictim or a relative of the victim, the survivor or designated key witness.

 

(c) Victims, key witnesses, offices of prosecutors, victimwitness coordinators and advocates who have participated in the criminalprosecution shall be offered the opportunity to be informed in writing by thedepartment of corrections about:

 

(i) The commencement of the offender's imprisonment to servethe sentence imposed and the name, official address and security classificationof the place of confinement;

 

(ii) The earliest date upon which the offender could be releasedand the date released;

 

(iii) Any transfer of the offender to another facility includingthe security classification of that facility;

 

(iv) Any work release of the offender and the assigned workrelease site;

 

(v) Any change in location of the offender's parolesupervision;

 

(vi) The escape, recapture or death of an offender;

 

(vii) Any reduction or extension of the offender's sentence.

 

(d) Victims, key witnesses, offices of prosecutors, victimwitness coordinators and advocates who have participated in the criminalprosecution shall be offered the opportunity to be informed in writing by theboard of parole about:

 

(i) Any decision to grant or modify parole and any conditionsimposed;

 

(ii) Any pending revocation of parole, any associated return tocustody, the revocation hearing date and disposition of revocation proceedings;

 

(iii) Any absconscion from supervision and subsequentapprehension;

 

(iv) Any rescission of parole;

 

(v) Discharge from parole.

 

(e) The governor's office shall ensure that the appropriategovernment agency shall notify in writing, or in person, victims, keywitnesses, prosecutors, victim witness coordinators and advocates who haveparticipated in the criminal prosecution of an application for a pardon or thepending commutation of the offender.

 

(f) Victims, key witnesses, prosecutors, victim witnesscoordinators and advocates who have participated in the criminal prosecutionwho wish to receive notification and information shall provide the appropriatecriminal justice agencies with their current address and telephone number. This address will only be used for notification purposes.

 

(g) Nothing in subsections (c) through (e) of this sectionshall mean the victim, key witnesses, prosecutors, victim witness coordinatorsor advocates who have participated in the criminal prosecution shall be giveninformation that could jeopardize the safety or security of any person.

 

1-40-205. Victims and witnesses of crime; free from intimidation.

 

(a) A victim or witness has the right to be free from any formof harassment, intimidation or retribution.

 

(b) When waiting to testify in any proceeding regarding acriminal act, a victim or key witness has the right to be provided, uponrequest, with a waiting area separate from other witnesses.

 

(c) When the threat of harassment, intimidation or retributioncannot be avoided, the court shall take appropriate measures to protect thevictim or key witness.

 

(d) Law enforcement officers and prosecuting attorneys shallprovide information regarding law enforcement measures available to protectvictims and key witnesses.

 

1-40-206. Victims of crime; present in court.

 

Unlessthe court for good cause shown shall find to the contrary, the victim, thevictim's designee or both shall have the right to be present at all trialproceedings which may be attended by the defendant.

 

1-40-207. Victims; timing of trial of accused.

 

(a) The court shall consider the victim's interest andcircumstances when setting any date for trial or in granting or denyingcontinuances.

 

(b) Nothing in this section shall infringe upon any rights ofthe accused in a criminal case or inhibit the ability of the prosecution anddefense from entering into any agreement as to trial setting or negotiateddisposition of any charge or charges pending against the defendant.

 

1-40-208. Prompt return of property.

 

(a) Victims and witnesses have the right to have any personalproperty, which is not contraband, promptly returned and any real estate,subject to declaration as uninhabitable under W.S. 35-9-156(d), released to thecontrol of the real estate owner, provided it does not interfere withprosecution, trial or appellate review of the case.

 

(b) Criminal justice agencies shall work together to expeditethe return of property when it is no longer needed. Prosecuting attorneys shallpromptly notify law enforcement agencies when evidence is no longer needed.

 

(c) The trial court exercising jurisdiction over a criminalproceeding shall, if requested, enter appropriate orders to implement theprovisions of this section.

 

1-40-209. Victims and witnesses have a right to preservation ofemployment.

 

(a) A victim or witness who responds to a subpoena from eitherthe prosecution or defense in a criminal case during working hours shall notsuffer any change in terms of employment solely because of the act ofresponding to a subpoena.

 

(b) A victim or witness, upon request, shall be assisted by lawenforcement agencies, the prosecuting attorney or defense attorney in informingan employer that the need for victim or witness cooperation may necessitate theabsence of the victim or witness from work.

 

(c) A victim or witness, who as a direct result of a criminalact or of cooperation with law enforcement agencies, prosecuting attorney ordefense attorney, experiences financial hardship, shall be assisted by thoseagencies, the prosecuting attorney or defense attorney in explaining toemployers and creditors the reasons for that financial hardship.

 

1-40-210. No civil liability created; testimony inadmissible; norelief by appeal.

 

(a) Nothing in this act shall be construed to create any civilcause of action for monetary damages against any person nor shall it constitutegrounds for any claim or motion raised by either the state or defendant in anyproceedings.

 

(b) Testimony or argument regarding the compliance ornoncompliance with this act is inadmissible in any criminal trial.

 

(c) The failure of a victim, designee or any criminal justiceagency personnel to exercise or enforce any right granted by the provisions ofthis act shall not be grounds for relief during proceedings or for any appealof a conviction by a defendant or grounds for any court to set aside, reverseor remand a criminal conviction.

 

ARTICLE 3 - COMPENSATION FROM BENEFITS OFCRIME

 

1-40-301. Compensation from benefits of crime.

 

Thelegislature finds that the state has a compelling interest in preventing anyperson who is convicted of a criminal act from profiting from the criminal actand in recompensing victims of the criminal act. It is therefore the intent ofthe legislature to provide a mechanism whereby any profits from a criminal actthat are received by the person convicted of the criminal act are available asrestitution to the victims of the criminal act.

 

1-40-302. Definitions.

 

(a) As used in this article:

 

(i) Repealed By Laws 1998, ch. 81, 3.

 

(ii) "Criminal act" means a conviction of an offenseas defined by W.S. 1-40-202(a)(i);

 

(iii) "Escrow account" means an account created underW.S. 1-40-303(a);

 

(iv) "Profits from the crime" means:

 

(A) Any property obtained through or income generated from thecommission of the criminal act of which the defendant was convicted;

 

(B) Any property obtained by or income generated from the sale,conversion or exchange of proceeds of the criminal act of which the defendantwas convicted, including any gain realized by the sale, conversion or exchange;and

 

(C) Any property that the defendant obtained or incomegenerated as a result of having committed the criminal act of which thedefendant was convicted, including any assets obtained through the use ofunique knowledge obtained during the commission of, or in preparation for thecommission of, the criminal act, as well as any property obtained by or incomegenerated from the sale, conversion or exchange of such property and any gainrealized by such sale, conversion or exchange.

 

(v) "Victim" means as defined by W.S.1-40-202(a)(ii);

 

(vi) "Division" means the victim services divisionwithin the office of the attorney general, created by W.S. 9-1-636.

 

1-40-303. Distribution of profits from crime.

 

(a) Any person who contracts with a defendant convicted of acriminal act in this state, or the defendant's representative or assignee, forpayment of any profits from the criminal act of which the defendant isconvicted shall pay to the division any money that would otherwise by terms ofthe contract be paid to the defendant or the defendant's representatives orassignees. The division shall deposit the money in an escrow account for thebenefit of any victim of the criminal act of which the defendant was convicted.

 

(b) Notwithstanding any other applicable statute oflimitations, any person who is a victim of the criminal act from which adefendant receives profits under subsection (a) of this section may, withinfive (5) years of the establishment of the escrow account:

 

(i) Enforce any order of restitution entered against thedefendant against the monies on deposit in the escrow account; or

 

(ii) Bring a civil action in a court of competent jurisdictionto recover a judgment against the defendant or the defendant's representativesor designees and enforce the judgment against monies on deposit in the escrowaccount.

 

(c) Upon establishing an escrow account pursuant to subsection(a) of this section, the division shall notify, at their last known address,all known victims of the criminal act of the establishment of the escrowaccount. The notice shall specify the existence of the escrow account, theamount on deposit and the victim's right to execute an order of restitution orbring a civil action to recover against the monies in the escrow account withinfive (5) years of the date the escrow account is established.

 

(d) The attorney general is authorized to bring any actionnecessary to enforce subsection (a) of this section. If the attorney generalprevails in an action under this subsection, the court shall order the paymentfrom the monies recovered to the attorney general of reasonable costs andattorney's fees.

 

1-40-304. Notification of division.

 

Itshall be the responsibility of the victim, the victim's attorney, or thevictim's representative to notify the division of the filing of any civilaction under W.S. 1-40-303(b)(ii).

 

1-40-305. Disbursal of compensation; more than one claim.

 

(a) The division shall not disburse any compensation from theescrow account until the later of:

 

(i) Five (5) years after the escrow account is established; or

 

(ii) The date all civil actions of which the division has actualknowledge and that are filed within the five (5) year period provided by W.S.1-40-303(b)(ii) have been settled or reduced to judgment.

 

(b) If more than one (1) claim against the monies in escrow isfiled pursuant to W.S. 1-40-303(b)(i) or (ii), the division shall disbursepayments from the escrow account on a pro rata basis.

 

1-40-306. Actions null and void.

 

Anyaction taken by a defendant who is convicted of a criminal act or who enters aplea of guilty, whether by way of the execution of a power of attorney, thecreation of corporate entities or any other action, to defeat the purpose ofthis article shall be null and void as against the public policy of this state.

 

1-40-307. Interest on monies in escrow account.

 

Interestearned on the monies deposited in an escrow account shall accrue to the benefitof the payees of the account.

 

1-40-308. Disbursal of unclaimed funds.

 

(a) Any unclaimed funds remaining in an escrow account afterthe disbursal period provided by W.S. 1-40-305(a) shall be forfeited and paidover to the crime victims compensation account created by W.S. 1-40-114 inaccordance with this section.

 

(b) If any unclaimed funds remain in an escrow account afterthe disbursal period provided by W.S. 1-40-305(a), the division shall seek anorder in district court to show cause why the funds should not be forfeited. Notice to the defendant and proceedings on the order to show cause shall beaccording to the Wyoming Rules of Civil Procedure, provided notice bypublication shall be once each week for two (2) consecutive weeks. The trialof the issues shall be by the court.

 

(c) On final hearing the order to show cause shall be taken asprima facie evidence that the funds constitute profits from the crime and issufficient for a judgment of forfeiture in the absence of other proof.

 

(d) In disputed cases the burden shall be upon the division toshow that there is a reasonable basis for believing that the funds constituteprofits from the crime.

 

(e) The proceedings and judgment of forfeiture shall be in remand shall be primarily against the property itself.

 

(f) Upon the entry of a judgment of forfeiture the court shallorder the funds paid over to the crime victims compensation account created byW.S. 1-40-114.

 


State Codes and Statutes

State Codes and Statutes

Statutes > Wyoming > Title1 > Chapter40

CHAPTER 40 - CRIME VICTIMS COMPENSATION

 

ARTICLE 1 - IN GENERAL

 

1-40-101. Short title.

 

Thisact is known and may be cited as the "Crime Victims CompensationAct".

 

1-40-102. Definitions.

 

(a) As used in this act:

 

(i) "Account" means the crime victims' compensationaccount established by W.S. 1-40-114;

 

(ii) Repealed By Laws 1998, ch. 81, 3.

 

(iii) "Criminal act" means an act committed orattempted in this state, including an act of domestic violence, whichconstitutes a crime as defined by the laws of this state or an act ofterrorism, as defined by 18 U.S.C. 2331 committed outside the United States,and which results in actual bodily injury, or actual mental harm, or death tothe victim. No act involving the operation of a motor vehicle, boat or aircraftwhich results in injury or death constitutes a crime for the purpose of thisact unless the injury or death was recklessly or intentionally inflictedthrough the use of the vehicle, boat or aircraft, or unless the act constitutesa violation of W.S. 31-5-233;

 

(iv) "Dependent" means any relative of the victim whowas wholly or partially dependent upon the victim's income at the time of hisinjury or death and includes the child of the victim born after his death;

 

(v) "Economic loss" means and includes medical andhospital expenses, loss of earnings, loss of future earnings resulting from theinjury, funeral and burial expenses and loss of support to the dependents ofthe victim to include home maintenance and child care;

 

(vi) "Medical expense" includes the cost of allmedical and dental services, mental health counseling and care, dental andprosthetic devices, eyeglasses or other corrective lenses, and servicesrendered in accordance with any method of healing recognized by the law of thisstate;

 

(vii) "Personal injury" means actual bodily injury oractual mental harm;

 

(viii) "Relative of the victim" means his spouse,parent, grandparent, stepparent, child including natural born child, stepchildor adopted child, grandchild, brother or sister;

 

(ix) "Victim" means:

 

(A) A person who suffers personal injury or is killed in thisstate as a direct result of:

 

(I) A criminal act of another person;

 

(II) The person's good faith and reasonable effort in attemptingto prevent the commission of a criminal act, or to apprehend a person engagingin a criminal act or assisting a law enforcement officer to do so;

 

(III) Assisting or attempting to assist a person against whom acrime is being perpetrated or attempted;

 

(IV) A federal crime occurring in Wyoming.

 

(B) A resident who is a victim of a crime occurring outsidethis state if:

 

(I) The crime would be compensable had it occurred inside thisstate; and

 

(II) The crime occurred in a state which does not have a crimevictim compensation program, for which the victim is eligible as eligibility isset forth in W.S. 1-40-101 through 1-40-119.

 

(C) A resident of this state who is injured or killed by an actof terrorism, as defined by 18 U.S.C. 2331, committed outside the UnitedStates;

 

(D) Family members who are Wyoming residents and who havesuffered a pecuniary loss as a result of a terrorist attack in the UnitedStates, regardless of the actual victim's residency;

 

(E) A resident of this state who is a victim of a crimeinvolving terrorism occurring outside this state if:

 

(I) The crime would be compensable had it occurred within thisstate; and

 

(II) The resident of this state suffered a pecuniary loss as adirect result of the act of terrorism committed in another state of the UnitedStates.

 

(x) "Division" means the victim services divisionwithin the office of the attorney general, created by W.S. 9-1-636;

 

(xi) "Catastrophic injury" means any permanentdisability of limbs or functions as a result of being a victim of a crime;

 

(xii) "Clandestine laboratory operation remediation"means a remediation of a clandestine laboratory operation carried out by a lawenforcement agency acting as an emergency responder pursuant to W.S.35-9-152(a)(i).

 

1-40-103. Repealed By Laws 1998, ch. 81, 3.

 

1-40-104. Division powers and duties.

 

(a) The division shall:

 

(i) Hear and determine all matters relating to claims forcompensation;

 

(ii) Publish annually a report showing its fiscal transactionsfor the preceding year, the amount of its accumulated cash and securities and abalance sheet showing its financial condition by means of an actuarialevaluation of commission assets and liabilities;

 

(iii) Keep a true and accurate record of all its proceedings,which record is open to public inspection at all reasonable hours;

 

(iv) Promulgate reasonable rules and regulations necessary tocarry out the purpose of this act pursuant to the Wyoming AdministrativeProcedure Act;

 

(v) Perform any other functions necessary to carry out thepurpose of this act;

 

(vi) Hearings and final decisions on victim's compensationsawards conducted by the division shall be exempt from the WyomingAdministrative Procedure Act, including the provisions for judicial reviewunder W.S. 16-3-114 and 16-3-115.

 

(b) In addition to any other powers specified by law, thedivision is empowered to:

 

(i) Request access to any reports of investigations, medicalrecords or other data necessary to assist the division in making adetermination of eligibility for compensation under this act. Uponauthorization of the attorney general, law enforcement officials, stateagencies and local government units shall provide assistance or informationrequested by the division;

 

(ii) Publicize the availability of compensation and informationregarding the filing of claims;

 

(iii) Investigate claims;

 

(iv) Repealed By Laws 1998, ch. 81, 3.

 

(v) Subpoena witnesses, compel their attendance, require theproduction of records and other evidence, administer oaths or affirmations,conduct hearings and receive relevant evidence;

 

(vi) Apply for and accept and administer monies from the federalgovernment, its agencies and all other sources, public and private, forcarrying out any of its functions;

 

(vii) Collect, develop, analyze and maintain statisticalinformation, records and reports as the division determines relevant ornecessary to carry out its powers and duties pursuant to this act;

 

(viii) Afterexhausting all alternatives available in paragraphs (i), (iii), (v) and (vi) ofthis subsection, direct and pay for medical examinations ofvictims as the division determines necessary to verify claims of economic lossdue to injury;

 

(ix) Collect all monies authorized by this act to be collectedby the division; and

 

(x) Pay all compensation or other benefits that are determinedto be due under this act and under division rules and regulations.

 

(c) Repealed By Laws 1998, ch. 81, 3.

 

1-40-105. Repealed By Laws 1998, ch. 81, 3.

 

1-40-106. Eligibility for compensation.

 

(a) The victim or his dependent is entitled to compensationunder this act if:

 

(i) The victim suffered personal injury as a result of acriminal act;

 

(ii) Repealed by Laws 1989, ch. 233, 2.

 

(iii) The injury to or death of the victim was not attributableto his own wrongful act;

 

(iv) The appropriate law enforcement authorities were notifiedof the criminal act allegedly causing the injury to or death of the victim assoon as practical under the circumstance after perpetration of the offense andthe claimant cooperates with appropriate law enforcement authorities withrespect to the crime for which compensation is sought;

 

(v) The application for compensation is filed with the divisionwithin one (1) year after the date of the injury to or death of the victim, orwithin any extension of time the division allows for good cause shown; and

 

(vi) The owner of real estate has paid all claims forreimbursement pursuant to W.S. 35-9-158(a)(ii).

 

(b) No victim or dependent shall be denied compensation solelybecause:

 

(i) He is a relative of the offender or was living with theoffender as a family or household member at the time of the injury or death. However, the division may award compensation to a victim or dependent who is arelative, family or household member of the offender only if the division canreasonably determine the offender will receive no economic benefit or unjustenrichment from the compensation;

 

(ii) He is not a resident of the state.

 

(c) Any person who perpetrates any criminal act on the personof another or who is convicted of a felony after applying to the division forcompensation is not eligible or entitled to receive compensation under thisact.

 

1-40-107. Application for compensation; required information.

 

(a) The application for compensation shall be on a formfurnished by the division, setting forth:

 

(i) The victim's name and address;

 

(ii) If the victim is deceased, the claimant's name and addressand his relationship to the victim, the names and addresses of the victim'sdependents and the extent to which each is dependent;

 

(iii) The date and nature of the criminal act on which claim forcompensation is based;

 

(iv) The date and place where and the law enforcement officialsto whom notification of the criminal act was given;

 

(v) The nature and extent of the injuries the victim sustainedand the names and addresses of those giving medical and hospitalizationtreatment to the victim;

 

(vi) The economic loss to the applicant and to all other personsas specified under paragraph (a)(ii) of this section resulting from the injuryor death;

 

(vii) The amount and source of benefits, payments or awards, ifany, payable to the applicant and dependents;

 

(viii) Releases authorizing the surrender to the division of allreports, medical records and other information relating to the claim and crime;and

 

(ix) Any other information the division reasonably requires.

 

(b) The division may require that materials substantiating thefacts stated in the application be submitted with the application. If thedivision finds that an application does not contain the required information orthat the facts stated therein have not been substantiated, it shall notify theapplicant in writing of the specific additional items or information ormaterials required and that the applicant has thirty (30) days from the date ofthe notice in which to furnish those items to the division. The division shallreject the application of an applicant who although notified fails to file therequested information or substantiating materials within the time specifiedunless he requests, and the division grants, an extension of time in which tofurnish that information.

 

(c) An applicant may file an amended application or additionalsubstantiating materials to correct inadvertent errors or omissions at any timebefore the division disposes of the original application. In either case, thefiling of additional information or of an amended application shall beconsidered to have been filed at the same time as the original application.

 

(d) Information contained in the claim files and records ofvictims, which are subject to any privilege of confidentiality under Wyominglaw, shall remain confidential and shall not be open to public inspection. Theinformation shall be immune from legal process and shall not, without theconsent of the person furnishing the information, be admitted as evidence orused for any purpose in any action, suit or other judicial, legislative oradministrative proceeding.

 

1-40-108. Hearing; findings; order.

 

(a) Hearings shall be held on the application and are open tothe public unless the division determines that a closed hearing is necessarybecause:

 

(i) The alleged assailant or offender has not been brought totrial and a public hearing would adversely affect either his apprehension orhis trial;

 

(ii) The victim or alleged assailant is a minor;

 

(iii) An open hearing would cause trauma for the victim;

 

(iv) A public hearing would frustrate rather than further theinterest of justice.

 

(b) A record shall be kept of the proceedings of hearings heldbefore the division and shall include the division's findings of fact andconclusions of the amount of compensation, if any, to which the applicant andpersons dependent on a deceased victim are entitled. No part of the record ofany hearing before the division may be used for any purpose in a criminalproceeding except in the prosecution of a person alleged to have perjuredhimself in his testimony before the division.

 

(c) At the conclusion of the hearing, the division shall enteran order stating:

 

(i) Its findings of fact;

 

(ii) Its decision as to whether or not compensation is due underthis act and the amount of compensation due, if any;

 

(iii) Whether disbursement of the compensation awarded is to bemade in a lump sum or in periodic payments; and

 

(iv) The person or persons to whom the compensation should bepaid.

 

(d) If the division finds, in the case of an application madeby a person dependent for his support on a deceased victim, that persons otherthan the applicant were also dependent on that victim for their support, itshall also:

 

(i) Name those persons in its order;

 

(ii) State the percentage share of the total compensation awardand the dollar amount to which each is entitled; and

 

(iii) Order that those amounts be paid to those persons directlyor, in the case of a minor or incompetent, to his guardian or conservator, asthe case may be.

 

(e) Notwithstanding subsection (a) of this section, thedivision may promulgate rules providing for an expedited claims process forapplications in which eligibility is clear and all information has beenverified.

 

1-40-109. Standards for compensation.

 

(a) For the purpose of determining the amount of compensationpayable pursuant to this act, the division, insofar as practicable, shallformulate standards for uniform application of this act and shall take intoconsideration rates and amounts of compensation payable for injuries and deathunder other laws of this state and of the United States and the availability offunds under this act.

 

(b) Loss of earnings and loss of future earnings shall bedetermined on the basis of the victim's average monthly earnings for the six(6) months immediately preceding the date of the injury, or the current federalminimum wage, whichever is less.

 

(c) Loss of support shall be determined on the basis of thevictim's or defendant's average monthly earnings for the six (6) monthsimmediately preceding the date of the injury, or the current federal minimumwage, whichever is less.

 

(d) Except as provided in subsection (e) of this section, themaximum individual award of compensation paid to any victim or dependent shallnot exceed fifteen thousand dollars ($15,000.00).

 

(e) In addition to the maximum award authorized in subsection(d) of this section, in the case of catastrophic injury the division may awardan additional amount not to exceed ten thousand dollars ($10,000.00) to thevictim to cover future lost wages, special medical needs and any other specialassistance needed as a result of the injury. The additional award may be madeonly for losses and expenses occurring within twenty-four (24) months after thedate of the injury.

 

1-40-110. Compensation award.

 

(a) If a person is injured or killed by a criminal act, thedivision may order the payment of compensation in accordance with this act for:

 

(i) Expenses actually and reasonably incurred as a result ofthe personal injury or death of the victim, by the victim, his dependent, orany person responsible for the victim's maintenance;

 

(ii) Loss of earning power as a result of the victim's total orpartial incapacity;

 

(iii) Economic loss to the deceased victim's dependents; and

 

(iv) Any other loss resulting from the personal injury or deathof the victim which the division determines to be reasonable.

 

(b) In determining whether to award compensation under thisact, the division shall consider:

 

(i) All circumstances surrounding the victim's conductdetermined to be relevant which directly contributed to the victim's injury ordeath;

 

(ii) Need for financial aid; and

 

(iii) Any other relevant matters.

 

(c) The division shall not consider whether the allegedassailant has been apprehended, prosecuted or convicted, nor the result of anycriminal proceedings against him.

 

(d) The crime victims compensation account is not a statehealth program and is not intended to be used as a primary payor to otherhealth care assistance programs, but is a public, quasi-charitable fund whosefundamental purpose is to assist victims of violent crimes through a period offinancial hardship as a payor of last resort. Payment made in accordance withthis section shall be considered payment of last resort that follows all othersources and is provided subsequent to all other benefits. Accordingly, indetermining the amount of compensation to be allowed by order, the divisionshall consider amounts received or receivable from any other source or sourcesby the victim or his dependents as a result of the incident or offense givingrise to the application. The division shall not deny compensation solelybecause the applicant is entitled to income from a collateral source.

 

1-40-111. Emergency awards; limitation.

 

(a) The division may grant an emergency award prior to theholding of a hearing, if upon application of a person eligible forcompensation, the division determines undue hardship will result to theapplicant if immediate payment is not made.

 

(b) The amount of the emergency award shall be dependent on theapplicant's immediate and verifiable needs as a result of loss of income orsupport, for emergency medical treatment, or for funeral and burial expenses. The amount of an emergency award to an applicant shall not exceed one thousanddollars ($1,000.00).

 

(c) Any emergency award granted under this section shall bededucted from the final compensation award made to the applicant. The excessof the amount of any emergency award over the amount of the final award, or thefull amount of the emergency award if no final award is made shall be repaid tothe division by the applicant.

 

1-40-112. Recovery from offender; restitution.

 

(a) If an order for the payment of compensation for personalinjury or death is made under this act, the state, upon payment of the amountof the order, shall be subrogated to any right of action the victim ordependent of the victim has against the person or persons responsible for theinjury or death, and the state may bring an action against the responsibleperson for the amount of the damages the applicant sustained.

 

(b) The applicant or other recipient shall give written noticeto the division of the making of a claim or demand or the filing of a suit forthe damages specified in subsection (a) of this section.

 

(c) Restitution by an offender under W.S. 7-9-101 through 7-9-112shall:

 

(i) To the extent compensation is paid under this act, be paidto the division, deposited in the account and be set off against a judgment infavor of the state in a civil action arising out of the same facts or event;

 

(ii) Reduce by like amount any compensation subsequently paidunder this act arising out of the same facts or event.

 

(d) Repealed By Laws 1997, ch. 152, 2.

 

(e) Repealed By Laws 1997, ch. 152, 2.

 

(f) Repealed By Laws 1997, ch. 152, 2.

 

(g) Any payment of benefits to, or on behalf of, a victim orother claimant under this act creates a debt due and owing to the state by anyperson found, in a criminal court proceeding in which he is a party, to havecommitted the criminal act. Payment of the debt shall be a condition ofprobation or parole:

 

(i) In making payment of the debt a condition of probation orparole, the court or state board of parole shall set the schedule or amounts ofpayments, subject to modification based on change of circumstances;

 

(ii) If the court or board does not order payment of the debt,or orders only partial payment, it shall state on the record the reasonstherefor.

 

1-40-113. Waivers and releases void; exemption from creditors' claims.

 

Anyagreement by an individual to waive, release or commute his rights under thisact is void. Compensation due under this act may not be assigned, pledged,encumbered, released or commuted. Compensation under this act is exempt fromall claims of creditors and from levy, execution and attachment or other remedyfor recovery or collection of a debt, except that compensation for an allowableexpense is not exempt from a claim of a creditor to the extent that creditorprovided products, services or accommodations, the costs of which are includedin the compensation award.

 

1-40-114. Crime victims' compensation account.

 

(a) There is established an account to be known as the crimevictims' compensation account. The account is under the administration andcontrol of the division for purposes of providing compensation or otherbenefits to crime victims and for purposes of implementing this act. Theaccount shall consist of all monies the division receives or collects from anysource and all monies shall be paid to the state treasurer for deposit in theaccount. The division may accept, and shall deposit to the account, any gifts,contributions, donations, grants or federal funds specifically given to thedivision for the benefit of victims of crime.

 

(b) The monies within the account may be withdrawn therefrom byvouchers signed by the director of the division or his designee. The divisionshall keep detailed permanent records of all monies credited to the account andall expenditures and disbursements from the account.

 

1-40-115. Informing victims of program and application procedure.

 

Eachlaw enforcement and prosecuting agency, and any victim witness program orfamily violence advocate funded in whole or in part with state or federalfunds, shall exercise reasonable care to insure that victims of crimes areinformed of the existence of the state program of compensation for death orinjuries sustained by victims of crime and the procedure for applying forcompensation under this act.

 

1-40-116. Fees not chargeable.

 

Nofee shall be charged to the applicant in any proceeding under this act exceptas provided by this act. If the applicant is represented by counsel in makingapplication under this act or in any further proceedings provided for in thischapter, the counsel shall not receive payment for his services except anamount as the division determines to be reasonable.

 

1-40-117. Falsifying, destroying or concealment of division records;furnishing false information or failing to disclose; other violations.

 

(a) Any agent or employee of the division who knowingly makes afalse entry or falsely alters any division record, or who intentionallydestroys, mutilates, conceals, removes or otherwise impairs the verity oravailability of any division record with the knowledge of a lack of authorityto do so, or who possesses a division record and refuses to deliver up thatrecord upon proper request of a person lawfully entitled to receive it isguilty of a misdemeanor.

 

(b) Any violation of this chapter for which a penalty is nototherwise provided is a misdemeanor.

 

1-40-118. Distribution of monies to crime victim service and victimassistance providers.

 

(a) In addition to any other powers specified in this act thedivision shall oversee the distribution of federal and state funds under itscontrol, to eligible crime victim service providers, including funds receivedunder the federal Victims of Crime Act of 1984.

 

(b) For purposes of this section "crime victim serviceprovider" means any program operated by a public agency or nonprofitorganization or any combination thereof which provides comprehensive servicesto victims of crime, including but not limited to:

 

(i) Crisis intervention services;

 

(ii) Informing victims and witnesses of the case status andprogress;

 

(iii) Assistance in participating in criminal justiceproceedings;

 

(iv) Performing advocate duties for crime victims;

 

(v) Assisting victims in recovering property damaged or stolenand in obtaining restitution or compensation for medical and other expensesincurred as a result of crime;

 

(vi) Developing community resources to assist victims of crime;

 

(vii) Assisting victims of crime in the preparation andpresentation of claims under the Crime Victims Compensation Act.

 

(c) In establishing priorities the division shall followrequirements regarding prioritization that are established by the fundingauthority.

 

(d) The division shall by rule establish a method fordistributing monies to crime victim service providers. The division's rulesand regulations shall reflect the following factors in determining thedistribution formula: population, needs assessment, regional cost differencesand any requirements promulgated by the granting source.

 

(i) Repealed By Laws 1998, ch. 81, 3.

 

(ii) Repealed By Laws 1998, ch. 81, 3.

 

(iii) Repealed By Laws 1998, ch. 81, 3.

 

(e) In determining whether a victim service provider iseligible to receive grants under subsection (d) of this section, the primaryconsideration shall be whether the eligibility requirements of the grantingsource are met, including the provider's agreement to submit an annualunduplicated count of the number of victims served in accordance with rules andregulations promulgated by the division.

 

(i) Repealed By Laws 1998, ch. 81, 3.

 

(ii) Repealed By Laws 1998, ch. 81, 3.

 

(f) Funds distributed under this section shall supplement, notsupplant, existing victim or witness programs throughout the state.

 

(g) To the extent the legislature provides funding for victimassistance providers that serve victims of all crimes, the division of victimservices shall:

 

(i) Distribute the state funding provided for victim assistanceproviders as follows:

 

(A) No less than two percent (2%) of the total amount of statefunding shall be distributed to each county and the Wind River IndianReservation for victim assistance providers within the county or within theWind River Indian Reservation that meet the requirements established by thedivision of victim services;

 

(B) Of the remaining state funding under this subsection,amounts shall be distributed to the victim assistance providers within thecounties and the Wind River Indian Reservation on a proportional basisaccording to each county's and the reservation's population. For purposes ofthe distribution under this subparagraph, the population residing on the WindRiver Indian Reservation shall be determined separate from the balance of thepopulation of Fremont county;

 

(C) If funds have been returned to the division pursuant tounfulfilled contracts under this subsection at the end of the fiscal year,prior to reversion pursuant to W.S. 9-2-1008, 9-2-1012(e) and 9-4-207(a), a lawenforcement agency that has carried out a clandestine laboratory operationremediation may apply for compensation under this subsection for anyremediation expenses not otherwise collected pursuant to W.S. 35-9-158(a). Themaximum amount payable pursuant to this subsection to a law enforcement agencythat has carried out a clandestine laboratory operation remediation shall bethe amount set forth in the court approved expense report as provided underW.S. 35-9-158(a) minus amounts collected from other sources pursuant to W.S.35-9-158(a).

 

(ii) Require victim assistance providers to:

 

(A) Provide the services specified under subsection (a) of thissection;

 

(B) Advocate to ensure victims are allowed to exercise theirrights under the victims bill of rights established in W.S. 1-40-203;

 

(C) Submit their long-term strategic plans to the division ofvictim services for approval.

 

(iii) Establish minimum program standards and uniform reportingprocedures for victim assistance providers that receive state funding underthis subsection through rules and regulations adopted in accordance with W.S.9-1-638(a)(vii).

 

1-40-119. Surcharge to be assessed in certain criminal cases; paid toaccount.

 

(a) In addition to any fine or other penalty prescribed by law,a defendant who pleads guilty or nolo contendere to, or is convicted of, thefollowing criminal offenses shall be assessed a surcharge of not less than onehundred dollars ($100.00) nor more than three hundred dollars ($300.00) for theoffenses specified in paragraph (v) of this subsection, not less than onehundred fifty dollars ($150.00) nor more than three hundred fifty dollars ($350.00)for the first plea to or conviction of offenses specified in paragraphs (i)through (iv) of this subsection, and not less than two hundred dollars($200.00) nor more than four hundred dollars ($400.00) for each subsequent pleato or conviction of offenses specified in paragraphs (i) through (iv) of thissubsection:

 

(i) Any crime enumerated in W.S. 6-1-101 through 6-10-203;

 

(ii) Any violation of W.S. 31-5-225, 31-5-229, 31-5-233 or41-13-220(a);

 

(iii) Any violation of W.S. 35-7-1001 through 35-7-1057;

 

(iv) Any violation of W.S. 6-2-314 through 6-2-318;

 

(v) Any violation of a municipal ordinance which hassubstantially similar elements to the criminal offenses specified in paragraphs(ii) through (iv) of this subsection or any other violation of a municipalordinance which causes actual damage to persons or property.

 

(b) The surcharge enumerated in subsection (a) of this sectionshall be imposed upon any defendant for whom prosecution, trial or sentence isdeferred under W.S. 7-13-301 and 7-13-302 or who participates in any otherdiversion agreement.

 

(c) Under no circumstances shall a court fail to impose thesurcharge required by subsections (a) and (b) of this section if the courtdetermines the defendant has an ability to pay or that a reasonable probabilityexists that the defendant will have an ability to pay.

 

(d) The surcharge shall be paid within ten (10) days ofimposition unless the court determines that it shall be paid in installmentsover a reasonable period of time. Failure to comply with the provisions forpayment of the surcharge is punishable as contempt of court. Contemptproceedings or other proceedings to collect the surcharge may be initiated bythe prosecuting attorney, by the court on its own motion or by the division.

 

(e) Monies paid to the court by a defendant shall be applied tothe surcharge before being applied to any fine, penalty, cost or assessmentimposed upon the defendant. The proceeds from the surcharge imposed by thissection shall be remitted promptly by the clerk of the court to the divisionfor deposit in the account.

 

ARTICLE 2 - VICTIM AND WITNESS BILL OF RIGHTS

 

1-40-201. Short title.

 

Thisact may be cited as the "victims bill of rights".

 

1-40-202. Definitions.

 

(a) As used in this act:

 

(i) "Criminal act" means conduct which wouldconstitute a crime as defined by the laws of this state;

 

(ii) "Victim" means an individual who has suffereddirect or threatened physical, emotional or financial harm as the result of thecommission of a criminal act or a family member of a victim who is a minor oran incompetent or a surviving family member of a homicide victim;

 

(iii) "Witness" means a person who is likely to testifyin a criminal proceeding;

 

(iv) "Key witness" means any witness identified inwriting by the prosecution as being entitled to the rights provided by thisact;

 

(v) "This act" means W.S. 1-40-201 through 1-40-210.

 

1-40-203. Victim and witness bill of rights.

 

(a) All victims and witnesses of crime shall be treated withcompassion, respect and sensitivity.

 

(b) Crime victims, key witnesses and, upon request, otherwitnesses shall have the following rights:

 

(i) To be provided notification and information about eventsaffecting the status of the case. These events shall include, but are notlimited to, the following as specified in W.S. 1-40-204:

 

(A) The general status of the case, provided the release ofinformation does not compromise the investigation or endanger witnesses;

 

(B) The scheduled hearings and dispositions of the case;

 

(C) The sentencing phase of the case;

 

(D) The imprisonment or release of the accused or convicteddefendant.

 

(ii) To be provided information about the right to receivejudicially ordered restitution as provided in W.S. 7-9-102;

 

(iii) To be provided information about their rights, privilegesand interests under this act as provided in W.S. 1-40-204;

 

(iv) To be provided information about compensation availableunder the Crime Victims Compensation Act as provided in W.S. 1-40-101 through1-40-119;

 

(v) To be provided information about services and assistanceavailable to victims and witnesses as provided in W.S. 1-40-204;

 

(vi) To be provided information about available legal recourseand other measures if subjected to threats or intimidation as provided in W.S.1-40-205;

 

(vii) To be provided, at the discretion of the prosecutingattorney or criminal justice personnel, reasonable protection and safetyimmediately before, during and after criminal justice proceedings;

 

(viii) To be provided with the names, official telephone numbersand official addresses of the primary law enforcement officer and prosecutorassigned to investigate the case;

 

(ix) To attend and participate in criminal justice systemproceedings as provided in W.S. 1-40-206;

 

(x) To have the accused brought to trial as provided in W.S.1-40-207. Nothing in this paragraph shall inhibit the ability of counsel forthe state and the defendant from entering into any negotiated disposition ofany charge or charges which have been levied against the accused;

 

(xi) To prompt return of property seized as evidence as providedin W.S. 1-40-208;

 

(xii) To be protected from discharge or discipline by an employerdue to involvement with the criminal justice process as provided in W.S.1-40-209;

 

(xiii) To be notified about the defendant's conviction as providedin W.S. 7-21-102(a);

 

(xiv) To be notified about the victim's opportunity to make avictim impact statement for use in the preparation of a presentence investigationreport concerning the defendant as provided in W.S. 7-21-102(a)(iii);

 

(xv) To be provided with the address and telephone number ofeach probation office which is to prepare the presentence investigation asprovided in W.S. 7-21-102(a)(iv);

 

(xvi) To be notified that the presentence investigation reportand any statement of the victim in the report will be made available to thedefendant as provided in W.S. 7-21-102(a)(v);

 

(xvii) To be notified about the opportunity to make an impact statementat sentencing as provided in W.S. 7-21-102(a); and

 

(xviii) To be notified of the time and place of the sentencingproceeding and any changes thereof as provided in W.S. 7-21-102(a)(vii).

 

(c) Courts shall enforce crime victim and witness rights underthis act to the extent the recognition of those rights do not conflict withconstitutional and statutory rights of the defendant.

 

1-40-204. Rights of victims and witnesses to be informed during thecriminal justice process.

 

(a) Victims of a criminal act shall be informed without unduedelay by law enforcement about:

 

(i) The rights enumerated in this act;

 

(ii) The right to be informed of the status of the case from theinitial police investigation to the final appellate review;

 

(iii) The fact that financial assistance or other social serviceoptions may be available to the victim;

 

(iv) The existence of the Crime Victims Compensation Act andthat compensation may be available to the victim;

 

(v) The right to have an interpreter or translator to informthe victim of these rights;

 

(vi) The name and official telephone number of the primary lawenforcement officer assigned to investigate the case together with the officialaddress and telephone number of the criminal justice agency investigating thecase;

 

(vii) The right to seek legal counsel and to employ an attorney.

 

(b) Victims and key witnesses of a criminal act shall beinformed in writing by the prosecuting attorney about:

 

(i) Subject to order of the court, the right to attend allhearings and proceedings involving the case, including the right to benotified, upon request, of the date, time and place of those hearings;

 

(ii) The right to be notified in advance, if reasonable, when acourt proceeding has been rescheduled or canceled;

 

(iii) The right to be advised of the potential for pleanegotiations and, prior to sentencing, the right to be informed of theexistence of a negotiated plea, the essentials of the agreement, and thereasons for the disposition;

 

(iv) The right to know the accused has obtained a pretrial orpresentence release;

 

(v) The right to discuss the case with the prosecutor, and theofficial address and official telephone number of the prosecutor;

 

(vi) The availability of other remedies, including the right toproceed in civil litigation generally and the right to any profits attributableto the offender as a result of publication or media coverage resulting from thecrime;

 

(vii) The fact that the attorneys involved and theirinvestigators are advocates either for the state or for the defendant;

 

(viii) The right to refuse to talk to attorneys, privateinvestigators, law enforcement, or anyone else unless on the witness stand orunder subpoena;

 

(ix) If known to the prosecutor, the schedule of any postsentence hearings affecting the probation of the offender;

 

(x) The right to provide an affidavit asserting acts or threatsof physical violence by the accused or at the accused's direction against thevictim or a relative of the victim, the survivor or designated key witness.

 

(c) Victims, key witnesses, offices of prosecutors, victimwitness coordinators and advocates who have participated in the criminalprosecution shall be offered the opportunity to be informed in writing by thedepartment of corrections about:

 

(i) The commencement of the offender's imprisonment to servethe sentence imposed and the name, official address and security classificationof the place of confinement;

 

(ii) The earliest date upon which the offender could be releasedand the date released;

 

(iii) Any transfer of the offender to another facility includingthe security classification of that facility;

 

(iv) Any work release of the offender and the assigned workrelease site;

 

(v) Any change in location of the offender's parolesupervision;

 

(vi) The escape, recapture or death of an offender;

 

(vii) Any reduction or extension of the offender's sentence.

 

(d) Victims, key witnesses, offices of prosecutors, victimwitness coordinators and advocates who have participated in the criminalprosecution shall be offered the opportunity to be informed in writing by theboard of parole about:

 

(i) Any decision to grant or modify parole and any conditionsimposed;

 

(ii) Any pending revocation of parole, any associated return tocustody, the revocation hearing date and disposition of revocation proceedings;

 

(iii) Any absconscion from supervision and subsequentapprehension;

 

(iv) Any rescission of parole;

 

(v) Discharge from parole.

 

(e) The governor's office shall ensure that the appropriategovernment agency shall notify in writing, or in person, victims, keywitnesses, prosecutors, victim witness coordinators and advocates who haveparticipated in the criminal prosecution of an application for a pardon or thepending commutation of the offender.

 

(f) Victims, key witnesses, prosecutors, victim witnesscoordinators and advocates who have participated in the criminal prosecutionwho wish to receive notification and information shall provide the appropriatecriminal justice agencies with their current address and telephone number. This address will only be used for notification purposes.

 

(g) Nothing in subsections (c) through (e) of this sectionshall mean the victim, key witnesses, prosecutors, victim witness coordinatorsor advocates who have participated in the criminal prosecution shall be giveninformation that could jeopardize the safety or security of any person.

 

1-40-205. Victims and witnesses of crime; free from intimidation.

 

(a) A victim or witness has the right to be free from any formof harassment, intimidation or retribution.

 

(b) When waiting to testify in any proceeding regarding acriminal act, a victim or key witness has the right to be provided, uponrequest, with a waiting area separate from other witnesses.

 

(c) When the threat of harassment, intimidation or retributioncannot be avoided, the court shall take appropriate measures to protect thevictim or key witness.

 

(d) Law enforcement officers and prosecuting attorneys shallprovide information regarding law enforcement measures available to protectvictims and key witnesses.

 

1-40-206. Victims of crime; present in court.

 

Unlessthe court for good cause shown shall find to the contrary, the victim, thevictim's designee or both shall have the right to be present at all trialproceedings which may be attended by the defendant.

 

1-40-207. Victims; timing of trial of accused.

 

(a) The court shall consider the victim's interest andcircumstances when setting any date for trial or in granting or denyingcontinuances.

 

(b) Nothing in this section shall infringe upon any rights ofthe accused in a criminal case or inhibit the ability of the prosecution anddefense from entering into any agreement as to trial setting or negotiateddisposition of any charge or charges pending against the defendant.

 

1-40-208. Prompt return of property.

 

(a) Victims and witnesses have the right to have any personalproperty, which is not contraband, promptly returned and any real estate,subject to declaration as uninhabitable under W.S. 35-9-156(d), released to thecontrol of the real estate owner, provided it does not interfere withprosecution, trial or appellate review of the case.

 

(b) Criminal justice agencies shall work together to expeditethe return of property when it is no longer needed. Prosecuting attorneys shallpromptly notify law enforcement agencies when evidence is no longer needed.

 

(c) The trial court exercising jurisdiction over a criminalproceeding shall, if requested, enter appropriate orders to implement theprovisions of this section.

 

1-40-209. Victims and witnesses have a right to preservation ofemployment.

 

(a) A victim or witness who responds to a subpoena from eitherthe prosecution or defense in a criminal case during working hours shall notsuffer any change in terms of employment solely because of the act ofresponding to a subpoena.

 

(b) A victim or witness, upon request, shall be assisted by lawenforcement agencies, the prosecuting attorney or defense attorney in informingan employer that the need for victim or witness cooperation may necessitate theabsence of the victim or witness from work.

 

(c) A victim or witness, who as a direct result of a criminalact or of cooperation with law enforcement agencies, prosecuting attorney ordefense attorney, experiences financial hardship, shall be assisted by thoseagencies, the prosecuting attorney or defense attorney in explaining toemployers and creditors the reasons for that financial hardship.

 

1-40-210. No civil liability created; testimony inadmissible; norelief by appeal.

 

(a) Nothing in this act shall be construed to create any civilcause of action for monetary damages against any person nor shall it constitutegrounds for any claim or motion raised by either the state or defendant in anyproceedings.

 

(b) Testimony or argument regarding the compliance ornoncompliance with this act is inadmissible in any criminal trial.

 

(c) The failure of a victim, designee or any criminal justiceagency personnel to exercise or enforce any right granted by the provisions ofthis act shall not be grounds for relief during proceedings or for any appealof a conviction by a defendant or grounds for any court to set aside, reverseor remand a criminal conviction.

 

ARTICLE 3 - COMPENSATION FROM BENEFITS OFCRIME

 

1-40-301. Compensation from benefits of crime.

 

Thelegislature finds that the state has a compelling interest in preventing anyperson who is convicted of a criminal act from profiting from the criminal actand in recompensing victims of the criminal act. It is therefore the intent ofthe legislature to provide a mechanism whereby any profits from a criminal actthat are received by the person convicted of the criminal act are available asrestitution to the victims of the criminal act.

 

1-40-302. Definitions.

 

(a) As used in this article:

 

(i) Repealed By Laws 1998, ch. 81, 3.

 

(ii) "Criminal act" means a conviction of an offenseas defined by W.S. 1-40-202(a)(i);

 

(iii) "Escrow account" means an account created underW.S. 1-40-303(a);

 

(iv) "Profits from the crime" means:

 

(A) Any property obtained through or income generated from thecommission of the criminal act of which the defendant was convicted;

 

(B) Any property obtained by or income generated from the sale,conversion or exchange of proceeds of the criminal act of which the defendantwas convicted, including any gain realized by the sale, conversion or exchange;and

 

(C) Any property that the defendant obtained or incomegenerated as a result of having committed the criminal act of which thedefendant was convicted, including any assets obtained through the use ofunique knowledge obtained during the commission of, or in preparation for thecommission of, the criminal act, as well as any property obtained by or incomegenerated from the sale, conversion or exchange of such property and any gainrealized by such sale, conversion or exchange.

 

(v) "Victim" means as defined by W.S.1-40-202(a)(ii);

 

(vi) "Division" means the victim services divisionwithin the office of the attorney general, created by W.S. 9-1-636.

 

1-40-303. Distribution of profits from crime.

 

(a) Any person who contracts with a defendant convicted of acriminal act in this state, or the defendant's representative or assignee, forpayment of any profits from the criminal act of which the defendant isconvicted shall pay to the division any money that would otherwise by terms ofthe contract be paid to the defendant or the defendant's representatives orassignees. The division shall deposit the money in an escrow account for thebenefit of any victim of the criminal act of which the defendant was convicted.

 

(b) Notwithstanding any other applicable statute oflimitations, any person who is a victim of the criminal act from which adefendant receives profits under subsection (a) of this section may, withinfive (5) years of the establishment of the escrow account:

 

(i) Enforce any order of restitution entered against thedefendant against the monies on deposit in the escrow account; or

 

(ii) Bring a civil action in a court of competent jurisdictionto recover a judgment against the defendant or the defendant's representativesor designees and enforce the judgment against monies on deposit in the escrowaccount.

 

(c) Upon establishing an escrow account pursuant to subsection(a) of this section, the division shall notify, at their last known address,all known victims of the criminal act of the establishment of the escrowaccount. The notice shall specify the existence of the escrow account, theamount on deposit and the victim's right to execute an order of restitution orbring a civil action to recover against the monies in the escrow account withinfive (5) years of the date the escrow account is established.

 

(d) The attorney general is authorized to bring any actionnecessary to enforce subsection (a) of this section. If the attorney generalprevails in an action under this subsection, the court shall order the paymentfrom the monies recovered to the attorney general of reasonable costs andattorney's fees.

 

1-40-304. Notification of division.

 

Itshall be the responsibility of the victim, the victim's attorney, or thevictim's representative to notify the division of the filing of any civilaction under W.S. 1-40-303(b)(ii).

 

1-40-305. Disbursal of compensation; more than one claim.

 

(a) The division shall not disburse any compensation from theescrow account until the later of:

 

(i) Five (5) years after the escrow account is established; or

 

(ii) The date all civil actions of which the division has actualknowledge and that are filed within the five (5) year period provided by W.S.1-40-303(b)(ii) have been settled or reduced to judgment.

 

(b) If more than one (1) claim against the monies in escrow isfiled pursuant to W.S. 1-40-303(b)(i) or (ii), the division shall disbursepayments from the escrow account on a pro rata basis.

 

1-40-306. Actions null and void.

 

Anyaction taken by a defendant who is convicted of a criminal act or who enters aplea of guilty, whether by way of the execution of a power of attorney, thecreation of corporate entities or any other action, to defeat the purpose ofthis article shall be null and void as against the public policy of this state.

 

1-40-307. Interest on monies in escrow account.

 

Interestearned on the monies deposited in an escrow account shall accrue to the benefitof the payees of the account.

 

1-40-308. Disbursal of unclaimed funds.

 

(a) Any unclaimed funds remaining in an escrow account afterthe disbursal period provided by W.S. 1-40-305(a) shall be forfeited and paidover to the crime victims compensation account created by W.S. 1-40-114 inaccordance with this section.

 

(b) If any unclaimed funds remain in an escrow account afterthe disbursal period provided by W.S. 1-40-305(a), the division shall seek anorder in district court to show cause why the funds should not be forfeited. Notice to the defendant and proceedings on the order to show cause shall beaccording to the Wyoming Rules of Civil Procedure, provided notice bypublication shall be once each week for two (2) consecutive weeks. The trialof the issues shall be by the court.

 

(c) On final hearing the order to show cause shall be taken asprima facie evidence that the funds constitute profits from the crime and issufficient for a judgment of forfeiture in the absence of other proof.

 

(d) In disputed cases the burden shall be upon the division toshow that there is a reasonable basis for believing that the funds constituteprofits from the crime.

 

(e) The proceedings and judgment of forfeiture shall be in remand shall be primarily against the property itself.

 

(f) Upon the entry of a judgment of forfeiture the court shallorder the funds paid over to the crime victims compensation account created byW.S. 1-40-114.

 

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