SB3036 - Conference Report

SECTION 1. Section 93-21-3, Mississippi Code of 1972, is amended as follows:

93-21-3. As used in this chapter, unless the context otherwise requires:

(a) "Abuse" means the occurrence of one or more of the following acts between family or household members who reside together or who formerly resided together or between individuals who have a current dating relationship:

(i) Attempting to cause or intentionally, knowingly or recklessly causing bodily injury or serious bodily injury with or without a deadly weapon;

(ii) Placing, by physical menace or threat, another in fear of imminent serious bodily injury; * * *

(iii) Criminal sexual conduct committed against a minor within the meaning of Section 97-5-23;

(iv) Stalking within the meaning of Section 97-3-107;

(v) Cyberstalking within the meaning of Section 97-45-15; or

(vi) Sexual offenses within the meaning of Section 97-3-65 or 97-3-95.

(b) "Adult" means any person eighteen (18) years of age or older, or any person under eighteen (18) years of age who has been emancipated by marriage.

(d) "Dating relationship" means a social relationship of a romantic or intimate nature.

(e) "Family or household member" means spouses, former spouses, persons living as spouses, parents and children, or other persons related by consanguinity or affinity.

SECTION 2. Section 93-21-7, Mississippi Code of 1972, is amended as follows:

93-21-7. (1) Any person may seek relief under this chapter for himself by filing a petition with the court alleging abuse by the respondent. Any parent, adult household member, or next friend of the abused person may seek relief under this chapter on behalf of any minor children or any person alleged to be incompetent by filing a petition with the court alleging abuse by the respondent. Cases seeking relief under this chapter shall be priority cases on the court's docket and the judge shall be immediately notified when a case is filed in order to provide for expedited proceedings.

(2) The petitioner in an action brought pursuant to this chapter shall not bear the costs associated with its filing or the costs associated with the issuance or service of any notice of a hearing to the respondent, issuance or service of an order of protection on the respondent, or issuance or service of a warrant or witness subpoena. If the court finds that the petitioner is entitled to an order protecting the petitioner from abuse, the court shall be authorized to assess all costs including attorney's fees of the proceedings to the respondent. The court may assess costs including attorney's fees to the petitioner if the allegations of abuse are determined to be without merit and the court finds that the petitioner is not a victim of abuse as defined by Section 93-21-3.

(3) (a) For every order of protection that is issued under this chapter, the amount of One Dollar ($1.00) shall be assessed as additional costs of court to be used by the Office of the Attorney General for expenses in developing and providing forms to the courts.

(b) There is hereby created in the State Treasury a special fund designated as the Domestic Violence Court Forms Fund. The fund shall be administered by the Attorney General. Money remaining in the fund at the end of a fiscal year shall not lapse into the State General Fund, and any interest earned from the investment of monies in the fund shall be deposited to the credit of the fund. Monies appropriated to the fund shall be used by the Attorney General for expenses in developing and providing domestic violence forms to the courts.

(c) The clerks of the various courts shall remit the proceeds of the cost of court created under this subsection to the Department of Finance and Administration as is done generally for other fees collected by the clerks.

SECTION 3. Section 93-21-11, Mississippi Code of 1972, is amended as follows:

93-21-11. (1) Within ten (10) days of filing of a petition under the provisions of this act, the court shall hold a hearing, at which time the petitioner must prove the allegation of abuse by a preponderance of the evidence. The respondent shall be given notice by service of process as otherwise provided by law.

(2) * * * The court may, prior to the date set for the hearing, enter such temporary ex parte order as it deems necessary to protect from abuse the petitioner, any minor children, or any person alleged to be incompetent. Immediate and present danger of abuse to the petitioner, any minor children, or any person alleged to be incompetent, shall constitute good cause for issuance of a temporary ex parte order. A temporary ex parte order shall last no longer than ten (10) days and upon issuance of a temporary ex parte order, the respondent shall be served with a copy of the order and given notice of a hearing to be held within ten (10) days as provided in subsection (1).

(3) If a hearing under subsection (1) of this section is continued, the court may make or extend such temporary ex parte orders under subsection (2) of this section as it deems necessary. A continuance under this subsection shall last no longer than twenty (20) days.

(4) Any temporary ex parte protective order to bring about a cessation of abuse of the petitioner, any minor children, or any person alleged to be incompetent, may include the following relief:

(a) Directing the defendant to refrain from abusing the petitioner, any minor children, or any person alleged to be incompetent;

(b) Granting possession to the petitioner of the residence or household to the exclusion of the defendant by evicting the defendant or restoring possession to the petitioner or both;

(d) Prohibiting or limiting contact with the abused by the respondent, whether in person, by telephone or by electronic communication; and

(e) Prohibiting the transferring, encumbering or otherwise disposing of property mutually owned or leased by the parties, except when in the ordinary course of business.

(5) The court may amend its order or agreement at any time upon subsequent petition by either party.

(6) No temporary ex parte protective order shall be issued unless supported by an independent petition requesting relief pursuant to this chapter. Every order granting a temporary ex parte protective order pursuant to this section shall set forth the reasons for its issuance, shall contain specific findings of fact regarding the existence of abuse, shall be specific in its terms and shall describe in reasonable detail the act or acts to be restrained. The Attorney General shall develop and distribute uniform forms for temporary ex parte protective orders.

(7) In issuing temporary ex parte protective orders pursuant to this section, the court may utilize the uniform form developed, approved and distributed by the Attorney General.

SECTION 4. Section 93-21-13, Mississippi Code of 1972, is amended as follows:

93-21-13. (1) After a hearing for which notice and opportunity to be heard has been provided to the respondent, * * * the justice court * * * shall be empowered to grant temporary relief * * * to bring about a cessation of abuse of the petitioner, any minor children, or any person alleged to be incompetent, which relief may include:

(a) Directing the respondent to refrain from abusing the petitioner, any minor children, or any person alleged to be incompetent;

(b) Prohibiting or limiting respondent's physical proximity to the abused, including residence and place of work;

(c) Prohibiting or limiting contact with the abused by the respondent, whether in person, by telephone or by electronic communication;

(d) Granting possession to the petitioner of the residence or household to the exclusion of the respondent by evicting the respondent * * * or restoring possession to the petitioner, or both; and

* * *

(e) Prohibiting the transferring, encumbering or otherwise disposing of property mutually owned or leased by the parties, except when in the ordinary course of business.

(2) The duration of any temporary order issued by a justice court * * * shall not exceed ten (10) days, with no more than one (1) ten-day renewal, or the date of the hearing in chancery, circuit or county court, whichever occurs first.

(3) The court may amend its order or agreement at any time upon subsequent petition by either party.

* * *

(4) Every order granting temporary relief pursuant to this section shall be based upon an independent petition for relief, shall set forth the reasons for its issuance, shall contain specific findings of fact regarding the existence of abuse, shall be specific in its terms and shall describe in reasonable detail the act or acts to be restrained. The court may utilize the form developed by the Mississippi Attorney General's Office in issuing any order for temporary relief.

SECTION 5. Section 93-21-15, Mississippi Code of 1972, is amended as follows:

93-21-15. (1) After a hearing for which notice and opportunity to be heard has been provided to the respondent, the chancery, circuit or county court shall be empowered to grant any protective order or approve any consent agreement to bring about a cessation of abuse of the petitioner, any minor children, or any person alleged to be incompetent, which relief may include:

(a) Directing the defendant to refrain from abusing the petitioner, any minor children, or any person alleged to be incompetent;

(b) Granting possession to the petitioner of the residence or household to the exclusion of the defendant by evicting the defendant and/or restoring possession to the petitioner;

(c) When the defendant has a duty to support the petitioner, any minor children, or any person alleged to be incompetent living in the residence or household and the defendant is the sole owner or lessee, granting possession to the petitioner of the residence or household to the exclusion of the defendant by evicting the defendant and/or restoring possession to the petitioner, or by consent agreement allowing the defendant to provide suitable, alternate housing;

(d) Awarding temporary custody of and/or establishing temporary visitation rights with regard to any minor children or any person alleged to be incompetent;

(e) If the defendant is legally obligated to support the petitioner, any minor children, or any person alleged to be incompetent, ordering the defendant to pay temporary support for the petitioner, any minor children, or any person alleged to be incompetent;

(f) Ordering the defendant to pay to the abused person monetary compensation for losses suffered as a direct result of the abuse, including, but not limited to, medical expenses resulting from such abuse, loss of earnings or support, out-of-pocket losses for injuries sustained, moving expenses, a reasonable attorney's fee, and/or ordering counseling or professional medical treatment for the defendant and/or the abused person; * * *

(g) Prohibiting the transferring, encumbering, or otherwise disposing of property mutually owned or leased by the parties, except when in the ordinary course of business;

(h) Prohibiting or limiting respondent's physical proximity to the abused, including residence and place of work; and

(i) Prohibiting or limiting contact with the abused by the respondent, whether in person, by telephone or by electronic communication.

(2) No protective order shall be issued unless supported by an independent petition requesting relief pursuant to this chapter. Every order granting a protective order pursuant to this section shall set forth the reasons for its issuance, shall contain specific findings of fact regarding the existence of abuse, shall be specific in its terms and shall describe in reasonable detail the act or acts to be prohibited.

(3) In issuing protective orders pursuant to this section, the court may utilize the uniform form developed, approved and distributed by the Attorney General.

(4) Upon issuance of any protective order by the court, the order shall be forwarded to the sheriff for enforcement and entry into the National Criminal Information Center's Protection Order File.

SECTION 6. Section 93-21-16, Mississippi Code of 1972, is amended as follows:

93-21-16. (1) A protective order from another jurisdiction issued to protect the applicant from abuse as defined in Section 93-21-3, or a protection order as defined in Section 93-22-3, issued by a tribunal of another state shall be accorded full faith and credit by the courts of this state and enforced in this state as provided for in the Uniform Interstate Enforcement of Domestic Violence Protection Orders Act.

(2) For purposes of enforcement by Mississippi law enforcement officers, a protective order from another jurisdiction, or a protection order as defined in Section 93-22-3 and issued by a tribunal of another state, is presumed to be valid if it meets the requirements of Section 93-22-7.

(3) For purposes of judicial enforcement of a protective order issued in another jurisdiction, or a protection order as defined in Section 93-22-3 and issued by a tribunal of another state, an order is presumed valid if it meets the requirements of Section 93-22-5(4). It is an affirmative defense in any action seeking enforcement of a protective order issued in another jurisdiction, or a protection order as defined in Section 93-22-3 and issued by a tribunal of another state, that any criteria for the validity of the order is absent.

SECTION 7. Section 93-21-17, Mississippi Code of 1972, is amended as follows:

93-21-17. (1) The granting of any relief authorized under this chapter shall not preclude any other relief provided by law.

(2) * * * The court may amend its order or agreement at any time upon subsequent petition filed by either party. Protective orders issued under the provisions of this chapter may only be amended by approval of the court.

(3) No order or agreement under this chapter shall in any manner affect title to any real property.

SECTION 8. Section 93-21-25, Mississippi Code of 1972, is amended as follows:

93-21-25. (1) In order to provide a statewide registry for protective orders and to aid law enforcement, prosecutors and courts in handling such matters, the Attorney General is authorized to create and administer a Mississippi Protective Order Registry. The Attorney General's Office shall collect the data transmitted to it from the courts and enter it into the Mississippi Protective Order Registry.

(2) All orders issued pursuant to this chapter will be maintained in the Mississippi Protective Order Registry.

(3) The clerk of the issuing court shall send a copy of the order or any modification thereof to the Mississippi Protection Order Registry as expeditiously as possible but no later than by the end of the next business day after the order is filed with the clerk of the court. Transmittal of the order may be by facsimile transmission, mail or email.

(4) Upon formation, the registry shall immediately implement a daily process for the entry of newly issued protective orders and removal of records and names of the parties in all cases in which a protective order expires by its own terms or is modified or rescinded by the court.

SECTION 9. Section 93-21-113, Mississippi Code of 1972, is amended as follows:

93-21-113. Domestic violence shelters through their employees and officials shall, on every occasion other than the initial request for assistance, report to the district attorney, the county attorney, or the appropriate law enforcement official or other state agencies any occurrence or instance coming to their attention which would involve the commission of a crime or the failure to perform or render a service or assistance to a victim of domestic violence when required by law to do so.

Every municipal prosecutor, county attorney, district attorney or other appropriate law enforcement official who, having had reported to him a case of domestic violence, if the facts submitted be sufficient, shall immediately file charges against the offender on the behalf of the victim. Such prosecutor may in plea bargaining with the offender enter into an agreement whereby the offender shall receive counseling in lieu of further prosecution, and if the offender shall successfully attend counseling as agreed upon for the period of time agreed upon, the municipal prosecutor, county attorney or district attorney, as the case may be, shall pass such case to the file.

No municipal prosecutor, county attorney or district attorney shall grant such right in plea bargaining to the same offender more than once.

SECTION 10. Section 97-3-7, Mississippi Code of 1972, is amended as follows:

97-3-7. (1) A person is guilty of simple assault if he (a) attempts to cause or purposely, knowingly or recklessly causes bodily injury to another; or (b) negligently causes bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm; or (c) attempts by physical menace to put another in fear of imminent serious bodily harm; and, upon conviction, he shall be punished by a fine of not more than Five Hundred Dollars ($500.00) or by imprisonment in the county jail for not more than six (6) months, or both. However, a person convicted of simple assault (a) upon a statewide elected official, law enforcement officer, fireman, emergency medical personnel, public health personnel, social worker or family protection specialist or family protection worker employed by the Department of Human Services or another agency, youth detention center personnel, any county or municipal jail officer, superintendent, principal, teacher or other instructional personnel, school attendance officer, school bus driver, or a judge of a circuit, chancery, county, justice, municipal or youth court or a judge of the Court of Appeals or a justice of the Supreme Court, district attorney, legal assistant to a district attorney, county prosecutor, municipal prosecutor, court reporter employed by a court, court administrator, clerk or deputy clerk of the court, or public defender, while such statewide elected official, judge or justice, law enforcement officer, fireman, emergency medical personnel, public health personnel, social worker, family protection specialist, family protection worker, youth detention center personnel, any county or municipal jail officer, superintendent, principal, teacher or other instructional personnel, school attendance officer, school bus driver, district attorney, legal assistant to a district attorney, county prosecutor, municipal prosecutor, court reporter employed by a court, court administrator, clerk or deputy clerk of the court, or public defender is acting within the scope of his duty, office or employment, or (b) upon a legislator while the Legislature is in regular or extraordinary session or while otherwise acting within the scope of his duty, office or employment, shall be punished by a fine of not more than One Thousand Dollars ($1,000.00) or by imprisonment for not more than five (5) years, or both.

(2) A person is guilty of aggravated assault if he (a) attempts to cause serious bodily injury to another, or causes such injury purposely, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life; or (b) attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm; and, upon conviction, he shall be punished by imprisonment in the county jail for not more than one (1) year or in the Penitentiary for not more than twenty (20) years. However, a person convicted of aggravated assault (a) upon a statewide elected official, law enforcement officer, fireman, emergency medical personnel, public health personnel, social worker, family protection specialist, family protection worker employed by the Department of Human Services or another agency, youth detention center personnel, any county or municipal jail officer, superintendent, principal, teacher or other instructional personnel, school attendance officer, school bus driver, or a judge of a circuit, chancery, county, justice, municipal or youth court or a judge of the Court of Appeals or a justice of the Supreme Court, district attorney, legal assistant to a district attorney, county prosecutor, municipal prosecutor, court reporter employed by a court, court administrator, clerk or deputy clerk of the court, or public defender, while such statewide elected official, judge or justice, law enforcement officer, fireman, emergency medical personnel, public health personnel, social worker, family protection specialist, family protection worker, youth detention center personnel, any county or municipal jail officer, superintendent, principal, teacher or other instructional personnel, school attendance officer, school bus driver, district attorney, legal assistant to a district attorney, county prosecutor, municipal prosecutor, court reporter employed by a court, court administrator, clerk or deputy clerk of the court, or public defender is acting within the scope of his duty, office or employment, or (b) upon a legislator while the Legislature is in regular or extraordinary session or while otherwise acting within the scope of his duty, office or employment, shall be punished by a fine of not more than Five Thousand Dollars ($5,000.00) or by imprisonment for not more than thirty (30) years, or both.

(3) A person is guilty of simple domestic violence who commits simple assault as described in subsection (1) of this section against a family or household member who resides with the defendant or who formerly resided with the defendant, a current or former spouse, a person who has a current dating relationship with the defendant, or a person with whom the defendant has had a biological or legally adopted child and upon conviction, the defendant shall be punished as provided under subsection (1) of this section; however, upon a third or subsequent conviction of simple domestic violence, whether against the same or another victim and within five (5) years, the defendant shall be guilty of a felony and sentenced to a term of imprisonment not less than five (5) nor more than ten (10) years. In sentencing, the court shall consider as an aggravating factor whether the crime was committed in the physical presence or hearing of a child under sixteen (16) years of age who was, at the time of the offense, living within either the residence of the victim, the residence of the perpetrator, or the residence where the offense occurred.

(4) A person is guilty of aggravated domestic violence who commits aggravated assault as described in subsection (2) of this section against a family or household member who resides with the defendant or who formerly resided with the defendant, or a current or former spouse, a person who has a current dating relationship with the defendant, or a person with whom the defendant has had a biological or legally adopted child and upon conviction, the defendant shall be punished as provided under subsection (2) of this section; however, upon a third or subsequent offense of aggravated domestic violence, whether against the same or another victim and within five (5) years, the defendant shall be guilty of a felony and sentenced to a term of imprisonment of not less than five (5) nor more than twenty (20) years. In sentencing, the court shall consider as an aggravating factor whether the crime was committed in the physical presence or hearing of a child under sixteen (16) years of age who was, at the time of the offense, living within either the residence of the victim, the residence of the perpetrator, or the residence where the offense occurred. Reasonable discipline of a child, such as spanking, is not an offense under this subsection (4).

(5) "Dating relationship" means a social relationship of a romantic or intimate nature.

(6) Every conviction of domestic violence may require as a condition of any suspended sentence that the defendant participate in counseling or treatment to bring about the cessation of domestic abuse. The defendant may be required to pay all or part of the cost of the counseling or treatment, in the discretion of the court.

(7) When investigating allegations of a violation of subsection (3) or (4) of this section, law enforcement officers shall utilize the form prescribed for such purposes by the Office of the Attorney General in consultation with the sheriff's and police chief's associations. In cases in which the investigation results in an arrest, a copy of the offense report shall be provided to the Office of the Attorney General.

(8) In any conviction of assault as described in any subsection of this section which arises from an incident of domestic violence, the sentencing order shall include the designation "domestic violence." The court shall forward a copy of each sentencing order bearing the designation "domestic violence" to the Office of the Attorney General.

SECTION 11. Section 99-5-37, Mississippi Code of 1972, is amended as follows:

99-5-37. In any arrest for a misdemeanor which is an act of domestic violence, as defined in Section 99-3-7(5), no bail shall be granted until the person arrested has appeared before a judge of the court of competent jurisdiction. The defendant shall be brought before a judge at the first reasonable opportunity, not to exceed twenty-four (24) hours from the time of the arrest. In calculating the twenty-four (24) hours, weekends and holidays shall be included. The appearance may be by telephone. Upon setting bail in any case involving a misdemeanor which is an act of domestic violence, the judge shall give particular consideration to the exigencies of the case, including, but not limited to, (a) the potential for further violence, (b) the past history, if any, of violence between the defendant and alleged victim, (c) the level of violence of the instant offense, (d) any threats of further violence and (e) the existence of a domestic violence protection order prohibiting the defendant from engaging in abusive behavior, and shall impose any specific conditions as he or she may deem necessary. Specific conditions which may be imposed by the judge may include the issuance of an order prohibiting the defendant from contacting the alleged victim prior to trial, prohibiting the defendant from abusing or threatening the alleged victim or requiring defendant to refrain from drug or alcohol use. All such orders shall be reduced to writing.

SECTION 12. Section 99-19-351, Mississippi Code of 1972, is amended as follows:

99-19-351. The penalty for any felony or misdemeanor which is a crime of violence or the crime of burglary or breaking and entering the dwelling of another shall be subject to enhancement as provided in Sections 99-19-351 through 99-19-357 if the felony or misdemeanor was committed against any victim who is sixty-five (65) years of age or older or who is disabled as described in 42 USCS 12102.

SECTION 13. Section 99-19-355, Mississippi Code of 1972, is amended as follows:

99-19-355. (1) Upon conviction or adjudication of guilt of a defendant where notice has been duly given that an enhanced penalty will be sought as provided in Sections 99-19-351 through 99-19-357, the court shall conduct a separate sentencing proceeding to determine the sentence. The proceeding shall be conducted by the trial judge before the trial jury as soon as practicable. If, through impossibility or inability, the trial jury is unable to reconvene for a hearing on the issue of penalty, having determined the guilt of the accused, the trial judge shall summon a jury to determine whether an enhanced penalty should be imposed. If trial by jury has been waived, or if the defendant pleaded guilty, the sentencing proceeding shall be conducted before a jury impaneled for that purpose. If the defendant enters a plea of guilty and waives trial by jury for the sentencing proceeding, the sentencing proceeding shall be conducted before the trial judge sitting without a jury. In the proceeding, evidence may be presented as to any matter that the court deems relevant to sentence. This subsection shall not be construed to authorize the introduction of any evidence secured in violation of the Constitution of the United States or of the State of Mississippi. The state and the defendant, or his counsel, or both defendant and counsel, shall be permitted to present arguments for or against any sentence sought.

(2) In order to impose an enhanced penalty under the provisions of Sections 99-19-351 through 99-19-357, the jury must find beyond a reasonable doubt:

(a) That the defendant perceived, knew, or had reasonable grounds to know or perceive that the victim was within the class delineated; and

(b) That the defendant maliciously and with specific intent committed the offense to any victim who is sixty-five (65) years of age or older or who is disabled as described in 42 USCS 12102.

SECTION 14. This act shall take effect and be in force from and after July 1, 2007.


X (SIGNED)	X (SIGNED)
Gray Tollison	Frances Fredericks

X (SIGNED)	X (SIGNED)
Hob Bryan	Edward Blackmon, Jr.

X (SIGNED)	X (SIGNED)
Sidney Albritton	John R. Reeves