H. B. 2894
(By Delegates Rowe, Smirl, Dalton, Underwood,
Buchanan and Givens)
(Originating in the Committee on the Judiciary)
[April 4, 1997]
A BILL to amend and reenact section two, article ten, chapter
eight of the code of West Virginia, one thousand nine
hundred thirty-one, as amended; and to amend and reenact
section one, article thirty-four of said chapter, all
relating to municipal powers, authority and duties,
requiring police court and municipal court judges to
complete mandatory training;
providing for appeals from
mayoral judicial exercise, police court or municipal court
to circuit court; creating time frames, bonds, and stays for
such appeals;
providing limited record of such court
proceedings; providing for the preparation and designation
of such records for appeal, electronic recordation of trials
and preparation of transcripts of such proceedings;
providing circuit court discretion to schedule oral
argument, receive memoranda of law, and take evidence;
providing factors for the circuit court to consider on such
appeal
and the
time frame for circuit court review of such
proceedings; and providing actions which the circuit court
may take to dispose of such appeals.
Be it enacted by the Legislature of West Virginia:
That section two, article ten, chapter eight of the code of
West Virginia, one thousand nine hundred thirty-one, as amended,
be amended and reenacted; and that section one, article thirty- four of said chapter be amended and reenacted, all to read as
follows:
ARTICLE 10. POWERS AND DUTIES OF CERTAIN OFFICERS.
PART II. POLICE COURT OR MUNICIPAL COURT.
§8-10-2. Police court or municipal court for municipalities.
(a) Notwithstanding any charter provision to the contrary,
any city may provide by charter provision and any municipality
may provide by ordinance for the creation and maintenance of a
police or municipal court, for the appointment or election of an
officer to be known as police court judge or municipal court
judge, and for his or her compensation, and authorize the
exercise by such the court or judge of such the court of the
jurisdiction and the judicial powers, authority and duties set
forth in section one of this article and similar or related
judicial powers, authority and duties enumerated in any
applicable charter provisions, as set forth in the charter or
ordinance. Such court or judge shall in all events have the
criminal jurisdiction of a justice of the peace or magistrate
court, but such jurisdiction shall expire on the first day of
January, one thousand nine hundred seventy-seven.
(b) Effective the fifteenth day of July, one thousand nine
hundred ninety-seven, no person may assume the duties of police
judge or municipal court judge unless he or she has first attended and completed a course of instruction in rudimentary
principles of law and procedure which shall be given in
accordance with the supervisory rules of the supreme court of
appeals.
§8-34-1. General right of appeal; recordation of jury trial;
preparation of record.
(a) Every person sentenced under this chapter by any mayor,
acting in a judicial capacity, or police court judge or municipal
court judge to imprisonment or to the payment of a fine of ten
dollars or more (and in no case shall a fine of less than ten
dollars be given if the defendant, his agent or attorney object
thereto) shall be allowed an appeal de novo to the circuit or
other court of the county exercising jurisdiction over appeals in
criminal cases from justices of the peace courts in the county,
upon entering into an appeal bond with surety deemed sufficient
in a penalty double the amount of fine and costs, with condition
that the person appealing will perform and satisfy any judgment
which may be rendered against him by the circuit or such other
court on such appeal. Any such appeal must be perfected within
ten days from and after the date upon which the sentence is
imposed may appeal that sentence to the circuit court as provided
in this section. When the municipality is located in more than
one county, the appeal shall be taken to the circuit court or
other court as aforesaid of the county in which the major portion
of the territory of the municipality is located. If such appeal
be taken, the appeal bond and other papers in the case shall be
forthwith delivered by the mayor, recorder or police court judge or municipal court judge to the clerk of the court to which such
appeal is taken, and such court shall proceed to try the case as
upon indictment or presentment, and render such judgment, without
remanding the case, as the law and the evidence may require. If
the judgment be against the accused, it shall include the costs
incurred in the proceedings before the mayor or police court
judge or municipal court judge, as well as in the said court.
(b) For purposes of appeal, when a jury trial is had before
a mayor or in police court or municipal court, that court shall
be a court of limited record. Trials before a mayor or police or
municipal court when a jury is empaneled shall be recorded
electronically. A magnetic tape or other electronic recording
medium on which a trial is recorded shall be indexed and securely
preserved by that court. When requested by the prosecutor or by
the defendant, or by any interested person, that court shall
provide a duplicate copy of the tape or other electronic
recording medium of each trial held. For evidentiary purposes,
a duplicate of such electronic recording prepared by that 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. Unless the requesting party is a defendant
proceeding as an indigent, the party shall pay to the court an
amount equal to the actual cost of the tape or other medium or
the sum of five dollars, whichever is greater.
(c) If the defendant in such a proceeding waives the right
to trial by jury or if no jury trial is required by law, the
matter shall be tried by the mayor, police court or municipal
court sitting without a jury. For purposes of appeal, when a
nonjury trial is had before a mayor or in police court or
municipal court, that court shall not be a court of limited
record and the proceedings shall not be electronically recorded.
(d) Any person convicted of an offense by a mayor or in a
police court or municipal court may appeal such conviction to
circuit court as a matter of right by requesting such appeal
within twenty days after the sentencing for such conviction. The
mayor, police court or municipal court judge may require the
posting of bond with good security conditioned upon the
appearance of the defendant as required in circuit court, but
such bond may not exceed the maximum amount of any fine which
could be imposed for the offense. The bond may be upon the
defendant's own recognizance. If no appeal is perfected within
such twenty-day period, the circuit court may, not later than
ninety days after the sentencing, grant an appeal upon a showing
of good cause why such appeal was not filed within the twenty-day
period. The filing or granting of an appeal shall automatically
stay the sentence of the mayor, police court or municipal court.
(e) In the case of an appeal of such a proceeding tried
before a jury, the hearing on the appeal before the circuit court
shall be a hearing on the record. In the case of an appeal of
such a proceeding tried before the mayor, police judge or
municipal judge without a jury, the hearing on the appeal before the circuit court shall be a trial de novo, triable to the court,
without a jury.
(f) In the case of an appeal of such a proceeding tried
before a jury, the following provisions shall apply:
(1) To prepare the record for appeal, the defendant shall
file with the circuit court a petition setting forth the grounds
relied upon, and designating those portions of the testimony or
other matters reflected in the recording, if any, which he or she
will rely upon in prosecuting the appeal. The prosecutor may
designate additional portions of the recording. Unless otherwise
ordered by the circuit court, the preparation of a transcript of
the portions of the recording designated by the defendant, and
the payment of the cost thereof shall be the responsibility of
the defendant: Provided,
That such costs may be waived due to
the defendant's indigence. The circuit court may, by general
order or by order entered in a specific case, dispense with
preparation of a transcript and review the designated portions of
the recording aurally.
(2) The designated portions of the recording or the
transcript thereof, as the case may be, and the exhibits,
together with all papers and requests filed in the proceeding,
constitute the exclusive record for appeal, and shall be made
available to the defendant and the prosecutor.
(3) After the record for appeal is filed in the office of
the circuit clerk, the court may, in its discretion, schedule the
matter for oral argument or require the parties to submit written
memoranda of law. The circuit court shall consider whether the judgment or order of the mayor, police court or municipal court
is:
(A) Arbitrary, capricious, an abuse of discretion or
otherwise not in conformance with the law;
(B) Contrary to constitutional right, power, privilege or
immunity;
(C) In excess of statutory jurisdiction, authority or
limitations or short of statutory right;
(D) Without observance of procedure required by law;
(E) Unsupported by substantial evidence; or
(F) Unwarranted by the facts.
(4) The circuit court may take any of the following actions
which may be necessary to dispose of the questions presented on
appeal, with justice to the defendant and the municipality:
(A) Dismiss the appeal;
(B) Reverse, affirm, or modify the judgment or order being
appealed;
(C) Remand the case for further proceedings, with
instructions to the mayor, police court or municipal court;
(D) Finally dispose of the action by entering judgment on
appeal; or
(E) Retain the matter and retry the issues of fact, or some
part or portions thereof, as may be required by the provisions of
subdivision (5) of this subsection.
(5) If the circuit court finds that a record for appeal is
deficient as to matters which might be affected by evidence not
considered or inadequately developed, the court may proceed to take such evidence and make independent findings of fact to the
extent that questions of fact and law may merge in determining
whether the evidence was such, as a matter of law, as to require
a particular finding. If the circuit court finds that the
proceedings below were subject to error to the extent that the
defendant was effectively denied a jury trial, the circuit court
may, upon motion of the defendant, empanel a jury to re-examine
the issues of fact, or some part or portions thereof.
(6) The review by the court and a decision on the appeal
shall be completed within ninety days after the appeal is
regularly placed upon the docket of the circuit court.
(g) In the case of an appeal of a mayoral, police court or
municipal court proceeding tried without a jury, the defendant
shall file with the circuit court a petition for appeal and trial
de novo. The exhibits, together with all papers and requests
filed in the proceeding, constitute the exclusive record for
appeal and shall be made available to the parties.
(h) Notwithstanding any other provision of this code to the
contrary, there shall be no appeal from a plea of guilty where
the defendant was represented by counsel at the time the plea was
entered: Provided,
That the defendant shall have an appeal from
a plea of guilty where an extraordinary remedy would lie or where
the mayor, police court or municipal court lacked jurisdiction.
(iI) The designation in this section of a mayor, acting as
police or municipal court judge, or of
police court or municipal
courts as "courts of limited record" shall not be construed to
give standing or eligibility to mayors, police court or municipal court judges to participate or be included in the retirement
system for judges of courts of record established under the
provisions of article nine, chapter fifty-one of this code.
NOTE: The purpose of this bill is to require mandatory
training for police and municipal court judges, to provide
procedure for appeal from police or municipal court to circuit
court and to eliminate trials de novo on appeals from police
court or municipal court to circuit court.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.