Releasing Witness From Subpoena on Case Continued Virginia

Rules 15 through 30

NOTE: The Rules of Criminal Procedure for the Magistrate Courts of West Virginia became effective on July 1, 1988

Table of Contents Full Table of Contents

1. Subpoenas
2. Dismissal
   1. Joinder and relief from prejudicial joinder
3. Trial
4. Verdict
5. Sentence
6. New trial
   1. Appeal to circuit court
7. Stay of execution
8. Enforcement of judgments
9. Forfeiture of bond
10. Search and seizure
11. Peace bonds
12. Time
13. Harmless error; correction of sentence; clerical mistakes
14. Revocation or modification of probation or alternative sentence
15. Discovery in misdemeanor actions
16. Discovery form

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Subpoena

Subpoenas for attendance of witnesses and subpoenas for production of documentary evidence and of objects shall be issued by the magistrate clerk, deputy clerk, magistrate or magistrate assistant in the same manner as is provided by Rule 17 of the Rules of Criminal Procedure for Circuit Courts.

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Dismissal

1. By Attorney for State. — The attorney for the state may move to dismiss a complaint, and if the magistrate grants the motion the prosecution shall thereupon terminate. Such a dismissal shall not be granted during the trial without the consent of the defendant.
2. By Magistrate. — The magistrate may dismiss the complaint, with or without a motion, if there is unnecessary delay in bringing a defendant to trial or if the attorney for the state fails to appear at trial. If the magistrate grants a motion to dismiss a complaint based on a defect in the institution of the prosecution or in the complaint, the magistrate may also stay entry of the order for a specified time pending the filing of a new complaint.

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Joinder and relief from prejudicial joinder

1. Two or more offenses may be charged in the same complaint, and tried together, but only if (1) the offenses are of the same or similar character, or (2) the offenses are based on the same act or transaction, or on acts or transactions connected together or constituting parts of a common scheme or plan. A magistrate may also, in his or her discretion, order two or more complaints to be tried together if the offenses could have been joined in one complaint.
2. If it appears that a defendant or the state is prejudiced by joinder of offenses, the court may on motion order separate trials for the offenses.
3. No more than one defendant may be charged in one complaint or tried in one proceeding.

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Trial

1. Conduct of Trial. — Trial shall be conducted by the examination and cross-examination of witnesses under oath or affirmation, in an orderly manner, and in accordance with the West Virginia Rules of Evidence.
2. Production of Statement of Witnesses. — Statements of witnesses shall be produced in accordance with the provisions of Rule 26.2 of the West Virginia Rules of Criminal Procedure.
3. Trial by Jury. — In cases of trial by jury, a sufficient number of persons shall be notified, in accordance with the Administrative Rules for Magistrate Courts, so that, after dismissals for cause, a panel of 10 persons may be assembled who are legally qualified and free from prejudice. The magistrate may conduct the examination of potential members of the panel or may permit all or part of such examination to be conducted by the parties or their attorneys. Upon selection of the panel of 10 persons legally qualified and free from prejudice, each side shall exercise 2 peremptory challenges to reduce the number of jurors to 6.
4. Record of Jury Trial. — Every jury trial shall be recorded electronically by a magistrate. If by reason of unavoidable cause it is impossible to record all or part of a jury trial electronically, a magistrate may proceed with the hearing but shall make a written record of the failure to do so and of the cause thereof.

   A magnetic tape or other electronic recording medium on which a jury trial is recorded shall be indexed and securely preserved by the magistrate court clerk or, as assigned by the clerk, by the magistrate assistant.

   For evidentiary purposes, a duplicate of such electronic recording prepared by the clerk of the magistrate court shall be a "writing" or "recording" as those terms are defined in Rule 1001 of the West Virginia Rules of Evidence, and unless the duplicate is shown not to reflect the contents accurately, it shall be treated as an original in the same manner that data stored in a computer or similar data is regarded as an "original" under such rule.

   When requested by the state, the defendant, or any interested person, the clerk of the magistrate court shall provide a duplicate copy of the tape or other electronic recording medium of any jury trial held. Unless a defendant requesting the copy has been permitted to proceed with appointed counsel, the defendant shall pay to the magistrate court an amount equal to the actual cost of the tape or other medium or the sum of five dollars, whichever is greater.

   Preparation and costs of a transcript of the record or any designated portions thereof shall be the responsibility of the party desiring such transcript unless the circuit court orders payment to be made by the Administrative Director of the Supreme Court of Appeals.

5. Jury Instructions. — In cases of trial by jury, at the close of the evidence, before arguments to the jury are begun, the magistrate shall instruct the jury regarding the law that is applicable to the case. Any party or counsel for any party may provide to the magistrate written requests that the magistrate instruct the jury on the law as set forth in the requests. The magistrate shall provide all parties or their counsel the opportunity, out of the presence of the jury, to argue for or against the giving or refusal to give any instruction.
6. Parties Not Represented by Counsel. — When a party appears at trial without counsel, the magistrate may inform the party, in the presence of all other parties, of the proper procedures regarding the conduct of trial and examination of witnesses. Such information shall not include counsel or advice regarding choice of tactics or strategy.

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Verdict

1. Return. — The verdict shall be unanimous. It shall be returned by the jury to the magistrate in open court.
2. Several Defendants and Offenses. — If there is more than one defendant or offense being tried, the jury at any time during its deliberations may return a verdict or verdicts with respect to a defendant or an offense as to which it has agreed; if the jury cannot agree with respect to all, the defendant or offense as to which it does not agree may be tried again. In all cases involving multiple defendants or offenses, the court shall require the jury to make a separate finding as to each defendant and offense.
3. Conviction of Lesser Offense. — The defendant may be found guilty of an offense necessarily included in the offense charged or of an attempt to commit either the offense charged or an offense necessarily included therein if the attempt is an offense.
4. Poll of Jury. — When a verdict is returned and before it is recorded the jury shall be polled at the request of any party or upon the court's own motion. If upon the poll there is not unanimous concurrence, the jury may be directed to retire for further deliberations or may be discharged.

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Sentence

1. Sentence shall be imposed in open court within 60 days of the finding of guilt.
2. Except as to pleas of guilty or no contest pursuant to Rule 7(b), before imposing sentence the magistrate shall:
   1. Afford counsel an opportunity to speak on behalf of the defendant; and
   2. Address the defendant personally to ask if the defendant wishes to make a statement in the defendant's own behalf and to present any information in mitigation of punishment.
3. The prosecuting attorney shall have an equivalent opportunity to speak to the court.

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New trial

1. Within 20 days after a verdict or a finding of guilty, the defendant may file a motion requesting that the judgment be set aside and a new trial held.
2. The clerk, deputy clerk or magistrate assistant shall notify all parties of the time, place and date set for hearing on the motion.
3. If good cause is shown that a new trial is required in the interest of justice, the magistrate who entered the judgment or such magistrate's successor may set aside the judgment and order a new trial.
4. If trial was by the magistrate without a jury, in lieu of a new trial, the magistrate may vacate the judgment, if entered, take additional testimony, and direct the entry of a new judgment.

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Appeal to circuit court

1. Except for persons represented by counsel at the time a guilty plea is entered, any person convicted of a misdemeanor in a magistrate court may appeal such conviction to the circuit court as a matter of right. Notice of appeal shall be filed in magistrate court:
   1. Within 20 days after the sentencing for such conviction; or
   2. Within 20 days after the magistrate has denied a motion for a new trial.
2. The magistrate may require that bond be posted with good security conditioned upon the appearance of the defendant as required in circuit court. Such bond may not exceed the maximum amount of any fine which could be imposed for the offense.
3. If no appeal is perfected within the appropriate 20-day period, the circuit court may, not later than 90 days after the date of sentencing, grant an appeal upon a showing of good cause why such appeal was not filed within the 20-day period.
4. An appeal of a magistrate court criminal proceeding tried before a jury shall be heard on the record in circuit court. An appeal of a criminal proceeding tried before a magistrate without a jury shall be by trial de novo in circuit court without a jury.

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Stay of execution

1. The timely filing or granting of an appeal automatically stays the sentence of the magistrate.
2. Upon request by the defendant, the execution of a criminal judgment shall be stayed to allow for the filing of a motion for a new trial or a petition for modification of sentence. Upon timely filing of such motion or petition, the execution of a criminal judgment shall be stayed until the same has been decided. In addition to granting the request of the defendant, the magistrate shall require the defendant to post or continue a sufficient bond to assure any required further appearance.

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Enforcement of judgments

1. Register of Unsatisfied Judgments. — The clerk shall maintain a register of all cases in which a period of confinement, fine, costs, forfeiture, and/or restitution have been ordered but which, upon 3 months from judgment and the expiration of any stay of execution, have not been satisfied, or, in the case of a period of confinement, is not currently being satisfied. Such register shall include the case number; name of the defendant; address of defendant, if known; nature of the offense; date of sentencing; period of confinement; fine, penalty and costs imposed; forfeiture or restitution ordered; and period of time unserved or amount of fine, penalty, costs, forfeiture and restitution remaining unsatisfied.
2. Notice of Unsatisfied Judgment. On a regular basis of at least once every month, the clerk shall:
   1. Provide the prosecuting attorney a copy of the register of unsatisfied judgments with abstracts of judgment for entries involving any criminal violation occurring after July 9, 1993 for which court-imposed assessments have not been paid in full;
   2. Provide the Division of Motor Vehicles a notice of all entries that have been added to the register since the previous notification regarding court-imposed assessments not paid in full for violations of Chapters 17, 17A, 17B, 17C and 17D of the West Virginia Code or such entries for any criminal violation occurring on or after July 9, 1993, with the exception of parking violations and other violations for which a citation may be issued to an unattended vehicle; and
   3. Provide to the Division of Natural Resources a notice of all hunting or fishing violation entries that have been added to the register since the previous notification for which court-imposed assessments have not been paid in full.

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Forfeiture of bond

1. Declaration. — If there is a breach of condition of a bond, the magistrate shall declare a forfeiture of the bail.
2. Setting Aside. — The magistrate may direct that a forfeiture be set aside or reduced, upon such conditions as the magistrate may impose, if it appears that justice does not require the enforcement of the forfeiture.
3. Enforcement. — When a forfeiture has not been set aside, the magistrate shall, upon motion and hearing, enter a judgment of default, and execution may issue thereon. By entering into a bond the obligors submit to the jurisdiction and venue of the magistrate and irrevocably appoint the clerk of the court as their agent upon whom any papers affecting their liability may be served. Their liability may be enforced on motion without the necessity of an independent action. The motion and notice of the motion, and the hearing thereon, shall comply with West Virginia Code § 62-1C-9.

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Search and seizure

All matters regarding search and seizure shall be governed by the procedures set forth in Rule 41 of the Rules of Criminal Procedure for Circuit Courts.

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Peace bonds

Applications for peace bonds shall be by complaint and shall be conducted in accordance with the procedures for criminal prosecutions as set forth in these rules.

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Time

1. Computation. — In computing any time limit set in accordance with these rules, set by the magistrate, or set by statute:
   1. The day of the act, event or default from which the designated period of time begins to run shall not be included.
   2. The last day of the time period shall be included, unless it is a Saturday, Sunday, or legal holiday.
   3. When the period of time prescribed or allowed is less than 7 days, intermediate Saturdays, Sundays and legal holidays shall be excluded in computation.
2. Extension. — Except as provided in section (c), below, any time limit which has been set by these rules, by the magistrate, or by statute, may be extended in the following circumstances:
   1. If all parties to the case agree in writing to the extension;
   2. If the existing period has not expired, upon a showing of good cause;
   3. If the time period has expired, upon a showing of unavoidable cause.
   Prior to ruling upon a request for an extension, the magistrate shall make a reasonable effort to notify all other parties and provide them with an opportunity to respond to the request.
3. Extension Prohibited. — Time periods for filing a motion to set aside judgment shall not be extended. Time periods for the payment of fines and costs, as authorized by W.Va. Code § 50-3-2a, shall not be extended.
4. Additional Time After Service by Mail. — When a party has received a notice or some other paper by mail and in response must take some action within a specified period from the date of mailing, 3 days shall be added to such period.

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Harmless error; correction of sentence; clerical mistakes

1. Harmless Error. — Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.
2. Correction of Sentence. — The magistrate who entered judgment, or such magistrate's successor, may correct an illegal sentence at any time.
3. Clerical Mistakes. — Clerical mistakes in judgments, orders or other parts of the record and errors in the record arising from oversight or omission may be corrected by the magistrate at any time and after such notice, if any, as the magistrate orders.

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Revocation or modification of probation or alternative sentence

1. Preliminary Hearing. - Whenever a person is held in custody on the ground that he or she has violated a condition of probation or an alternative sentence, the person shall be afforded a prompt hearing before a magistrate who has been authorized by law to conduct preliminary hearings, in order to determine whether there is probable cause to hold the person for a revocation hearing. The person may waive the preliminary hearing. The person shall be given:
   1. Notice of the preliminary hearing and its purpose and of the alleged violation;
   2. An opportunity to appear at the hearing and present evidence in his or her own behalf;
   3. Upon request, the opportunity to question adverse witnesses unless, for good cause, the magistrate decides that justice does not require the appearance of the witness; and
   4. Notice of his or her right to be represented by counsel.
2. Post Conviction Bond. — If probable cause is found to exist, the person shall be held for a revocation hearing. The person may be released pursuant to Chapter 62-1C-1 et. seq., pending the revocation hearing. If probable cause is not found to exist, at the preliminary hearing the proceedings shall be dismissed.
3. Revocation Hearing. — The revocation hearing, unless waived by the person shall be held within a reasonable time, and pursuant to the procedure prescribed in Chapter 62, Article 12, Section 10, of the West Virginia Code of 1931, as amended. The person shall be given:
   1. Written notice of the alleged violation;
   2. Disclosure of the evidence against him or her;
   3. An opportunity to appear and to present evidence in his or her own behalf;
   4. The opportunity to question adverse witnesses; and
   5. Notice of his or her right to be represented by counsel, and, in the event he or she is indigent, of his or her right to appointed counsel.

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Discovery in misdemeanor actions

1. The state and the defendant shall make every reasonable effort to informally exchange reciprocal discovery prior to trial. In the event that the parties are unable to reach an agreement on discovery, the following provisions shall apply:
2. Disclosure of evidence by the state.
   1. The following must be disclosed by the state, if the state intends to use such evidence during any stage of the court proceedings:
      1. Statement of defendant
      2. Defendant's prior criminal record
      3. Documents and tangible objects
      4. Reports of examination and tests
      5. Expert witnesses: names, addresses and summary of expected testimony
      6. State witnesses: names and addresses
3. Disclosure of evidence by the defendant.
   1. The following must be disclosed by the defendant, if the defendant intends to use such evidence during any stage of the court proceedings:
      1. Documents and tangible objects
      2. Reports of examinations and tests
      3. Expert witnesses: names, addresses and summary of expected testimony
      4. Defense witnesses: names and addresses
4. Timing of discovery from the state. If discovery is requested by the defendant, the relevant discovery material shall be provided at least 21 days in advance of the date of trial, provided that the request has been made at least 14 days in advance of the date the response is due.
5. Timing of discovery from the defendant. If reciprocal discovery is requested by the state, the relevant discovery material shall be provided at least 14 days before the date of trial, provided that the request is made at least 7 days in advance of the date the response is due.
6. Continuance. If discovery that has been timely requested is not, for good reason shown, available to be produced in a timely manner, either the state or the defense may request, and be granted, a continuance to facilitate production of the requested material.
7. Failure to comply with discovery request. If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this rule, the court may order such party to promptly provide the discovery or to promptly arrange for inspection of the discovery. In addition, the court may grant a continuance or prohibit the offending party from introducing any evidence that was not disclosed.

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Discovery form

A request for discovery pursuant to Rule 29 of the Rules of Criminal Procedure for Magistrate Courts shall be made by using the following form:

IN THE MAGISTRATE COURT OF THE _______ COUNTY, WEST VIRGINIA

IN THE MATTER OF:

State of West Virginia

v.                    Case No. ____________________

Defendant

__________________________________

__________________________________

__________________________________

REQUEST FOR DISCOVERY

You are hereby notified that the undersigned is requesting _________________ discovery / _______________ reciprocal discovery pursuant to Rule 29 of the Rules of Criminal Procedure for Magistrate Courts.

____________          ____________________________
Date                               State / Defendant

Notice: Pursuant to Rule 29(d) of the Rules of Criminal Procedure for Magistrate Courts, if discovery is requested by the defendant, the relevant discovery material must be provided at least 21 days in advance of the date of trial, provided that the request has been made at least 14 days in advance of the date the response is due.

Notice: If reciprocal discovery is requested by the state, the relevant discovery material must be provided at least 14 days before the date of the trial, provided that the request is made at least 7 days in advance of the date the response is due.

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Source: http://www.courtswv.gov/legal-community/court-rules/Magistrate/mag-criminal-2.html

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