RULES OF CRIMINAL PROCEDURE FOR MAGISTRATE COURTS
RULE 1. SCOPE
These rules govern the procedure in all criminal proceedings
in the magistrate courts of the State of West Virginia. These
rules supplement, and in designated instances supersede, the
statutory procedures set forth in Chapter 50 and Chapter 62 of the
West Virginia Code.
[Effective July 1, 1988.]
RULE 2. PURPOSE AND CONSTRUCTION
These rules are intended to provide for the just determination
of every criminal proceeding. They shall be construed to secure
simplicity in procedure, fairness in administration, and the
elimination of unjustifiable expense and delay.
[Effective July 1, 1988.]
RULE 3. COMPLAINT
The complaint is a written statement of the essential facts
constituting the offense charged. The complaint shall be presented
to and sworn or affirmed before a magistrate in the county where
the offense is alleged to have occurred. Unless otherwise provided
by statute, the presentation and oath or affirmation shall be made
by a prosecuting attorney or a law enforcement officer showing
reason to have reliable information and belief. If from the facts stated in the complaint the magistrate finds probable cause, the
complaint becomes the charging instrument initiating a criminal
proceeding.
[Effective July 1, 1988; amended effective August 1, 1991; April 1,
1993.]
RULE 4. ARREST WARRANT OR SUMMONS UPON COMPLAINT
(a) Issuance. If it appears from the complaint, or from an
affidavit or affidavits filed with the complaint, that there is
probable cause to believe that an offense has been committed and
that the defendant has committed it, a warrant for the arrest of
the defendant shall issue to any officer authorized by law to
execute it. The magistrate may restrict the execution of the
warrant to times during which a magistrate is available to conduct
the initial appearance. Within the discretion of the magistrate a
summons instead of a warrant may issue. More than one warrant or
summons may issue on the same complaint. If a defendant fails to
appear in response to the summons, a warrant shall issue.
(b) Probable Cause. The finding of probable cause may be
based upon hearsay evidence in whole or in part.
(c) Form.
(1) Warrant. The warrant shall be signed by the magistrate
and shall contain the name of the defendant or, if the defendant's
name is unknown, any name or description by which the defendant can be identified with reasonable certainty. It shall describe the
offense charged in the complaint. It shall command that the
defendant be arrested and brought before the nearest available
magistrate of the county in which the warrant is executed.
(2) Summons. The summons shall be in the same form as the
warrant except that it shall summon the defendant to appear before
a magistrate at a stated time and place.
(d) Execution or Service; and Return.
(1) By Whom. The warrant shall be executed by any officer
authorized by law to arrest persons charged with offenses against
the state. The summons may be served by any person authorized to
serve a summons in a civil action.
(2) Territorial Limits. The warrant may be executed or the
summons may be served at any place within the state.
(3) Manner. The warrant shall be executed by the arrest of
the defendant. The officer need not have the warrant at the time
of the arrest, but upon request the officer shall show the warrant
to the defendant as soon as possible. If the officer does not have
the warrant at the time of the arrest, the officer shall then
inform the defendant of the offense charged and of the fact that a
warrant has been issued. The summons shall be served upon a
defendant by delivering a copy to the defendant personally, or by
leaving it at the defendant's dwelling house or usual place of
abode with some person of suitable age and discretion then residing
therein and by mailing a copy of the summons to the defendant's last known address.
(4) Return. The officer executing a warrant shall make return
thereof to the magistrate or other officer before whom the
defendant is brought pursuant to Rule 5. At the request of the
attorney for the state any unexecuted warrant shall be returned to
and canceled by the magistrate by whom it was issued. On or before
the return day the person to whom a summons was delivered for
service shall make return thereof to the magistrate before whom the
summons is returnable. At the request of the attorney for the
state, made at any time while the complaint is pending, a warrant
returned unexecuted and not canceled or a summons returned unserved
or a duplicate thereof may be delivered by the magistrate to an
authorized person for execution or service.
[Effective July 1, 1988; amended effective January 1, 1990;
September 1, 1995.]
RULE 5. INITIAL APPEARANCE BEFORE THE MAGISTRATE; BAIL
(a) In General. An officer making an arrest under a warrant
issued upon a complaint or any person making an arrest without a
warrant shall take the arrested person without unnecessary delay
before a magistrate within the county where the arrest is made. If
a person arrested without a warrant is brought before a magistrate,
a complaint shall be filed forthwith which shall comply with the
requirements of Rule 4(a) with respect to the showing of probable cause. When a person, arrested with or without a warrant or given
a summons, appears initially before the magistrate, the magistrate
shall proceed in accordance with the applicable subdivision of this
rule.
(b) Misdemeanor Offense Triable Before a Magistrate. If the
charge against the defendant is an offense triable by a magistrate,
unless the defendant waives the right to a trial on the merits, the
magistrate shall proceed in accordance with the rules of procedure
set forth herein. The magistrate shall inform the defendant of the
complaint and any affidavit filed therewith, of the right to retain
counsel, of the right to request the assignment of counsel if the
defendant is unable to obtain counsel, of the right to demand a
jury trial, and of the general circumstances under which the
defendant may secure pretrial release. The magistrate shall inform
the defendant that he or she is not required to make a statement
and that any statement made by the defendant may be used against
him or her. The magistrate shall allow the defendant reasonable
time and opportunity to consult with counsel or with at least one
relative or other person for the purpose of obtaining counsel or
arranging bail as provided by statute or in these rules.
(c) Demand for Jury Trial. When a magistrate informs a
defendant of the right to demand a jury trial, the defendant shall
also be informed that the demand must be made to the court in
writing either within 20 days after the initial appearance or 20
days after an attorney is appointed by the circuit court, whichever applies, or the right will be waived and the trial will be before
the magistrate without a jury. The magistrate shall further inform
the defendant that if a jury trial is demanded, the demand may not
be withdrawn if the prosecuting attorney objects to the withdrawal.
(d) Offenses Not Triable by the Magistrate. If the charge
against the defendant is to be presented for indictment, the
defendant shall not be called upon to plead. The magistrate shall
inform the defendant of the complaint and any affidavit filed
therewith, of the right to retain counsel, of the right to request
the assignment of counsel, of the right to request the assignment
of counsel if the defendant is unable to obtain counsel, and of the
general circumstances under which the defendant may secure pretrial
release. The magistrate shall inform the defendant that he or she
is not required to make a statement and that any statement made by
the defendant may be used against him or her. The magistrate shall
also inform the defendant of the right to a preliminary
examination. The magistrate shall allow the defendant reasonable
time and opportunity to consult with counsel or with at least one
relative or other person for the purpose of obtaining counsel or
arranging bail as provided by statute or in these rules and shall
admit the defendant to bail as provided by statute or in these
rules.
If the offense is to be presented for indictment, a defendant
is entitled to a preliminary examination unless waived. If the
defendant waives preliminary examination, the magistrate clerk shall transmit forthwith to the clerk of the circuit court all
papers in the proceeding. The magistrate court clerk shall also
transmit to the prosecuting attorney a copy of the criminal case
history sheet. Thereafter, the proceeding shall remain within the
jurisdiction of the circuit court and shall not be remanded to the
magistrate. If the defendant does not waive the preliminary
examination, the magistrate shall schedule a preliminary
examination. Such examination shall be held within a reasonable
time but in any event not later than 10 days following the initial
appearance if the defendant is in custody and no later than 20 days
if the defendant is not in custody; provided, however, that the
preliminary examination shall not be held if the defendant is
indicted or if an information against the defendant is filed in
circuit court before the date set for the preliminary examination.
With the consent of the defendant and upon a showing of good cause,
taking into account the public interest in the prompt disposition
of criminal cases, time limits specified in this subdivision may be
extended one or more times by a magistrate. In the absence of such
consent by the defendant, time limits may be extended by a judge of
the circuit court only upon a showing that extraordinary
circumstances exist and that delay is indispensable to the
interests of justice.
(e) Bail.
(1) The magistrate who originally sets bail retains
jurisdiction with respect to bail only until the case is assigned. The assigned magistrate shall then have jurisdiction until the
preliminary examination is held or waived, until the trial is held,
or until the case is otherwise disposed of, subject to the proviso
of Rule 2(a) of the Administrative Rules for the Magistrate Courts.
(2) A third party may secure pretrial release in the absence
of a defendant who is in custody when the record contains a written
acknowledgment of the terms and conditions of pretrial release
signed by a magistrate and the defendant. Any magistrate may
accept bail in the absence of the defendant provided that the third
party reviews and agrees to the same terms and conditions of
pretrial release by executing a separate written acknowledgment
before the magistrate. No change may be made in the terms and
conditions of pretrial release between the acknowledgment executed
by the defendant and magistrate and the acknowledgment executed by
the third party.
(3) Except as provided by Rule 5.2(d) of these rules, a
magistrate may grant or deny a motion for change of bail or bond
only after due notice to both the defendant and the attorney for
the state and upon hearing, which shall be held within 5 days of
the date the motion is filed.
[Effective July 1, 1988; amended effective August 1, 1991; January
1, 1993; July 1, 1994; September 1, 1995; September 1, 1996.]
RULE 5.1 PRELIMINARY EXAMINATIONS
(a) Probable Cause Finding. If from the evidence it appears
that there is probable cause to believe that an offense has been
committed and that the defendant committed it, the magistrate shall
forthwith hold the defendant to answer in circuit court. The state
shall be represented by the prosecuting attorney at the preliminary
examination. Witnesses shall be examined and evidence introduced
for the state under the rules of evidence prevailing in criminal
trials generally except that hearsay evidence may be received, if
there is a substantial basis for believing:
(1) That the source of the hearsay is credible;
(2) That there is a factual basis for the information
furnished; and
(3) That it would impose an unreasonable burden on one of the
parties or on a witness to require that the primary source of the
evidence be produced at the hearing.
The defendant may cross-examine adverse witnesses and may
introduce evidence. Objections to evidence on the ground that it
was acquired by unlawful means are not properly made at the
preliminary examination. Motions to suppress must be made to the
trial court as provided in Rule 12 of the Rules of Criminal
Procedure applicable to circuit courts. On motion of either the
state or the defendant, witnesses shall be separated and not
permitted in the hearing room except when called to testify.
(b) Discharge of Defendant. If from the evidence it appears
that there is no probable cause to believe that an offense has been committed or that the defendant committed it, the magistrate shall
dismiss the complaint and discharge the defendant. The discharge
of the defendant shall not preclude the state from instituting a
subsequent prosecution for the same offense.
(c) Records.
(1) A magistrate shall record electronically every preliminary
examination conducted. If by reason of unavoidable cause it is
impossible to record all or part of a preliminary examination
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 preliminary examination 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 or of the circuit
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 or of the circuit court shall provide a duplicate copy of the tape or other electronic recording
medium of any preliminary examination held. Any defendant
requesting the copy who has not been permitted to proceed with
appointed counsel, any prosecutor who does not supply a blank tape,
and any other person 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 of a transcript of the record or any designated
portions thereof shall be the responsibility of the party desiring
such transcript.
(2) If probable cause is found at the conclusion of a
preliminary examination in magistrate court: (i) the magistrate
clerk shall transmit to the prosecuting attorney a copy of the
criminal case history sheet; (ii) when the proceeding is recorded
electronically, the magistrate clerk shall transmit forthwith to
the clerk of the circuit court all papers and electronic records of
the proceeding; if for unavoidable cause the proceeding or part
thereof has not been recorded electronically, the magistrate shall
promptly make or cause to be made a summary written record of the
proceeding, and the magistrate clerk shall transmit forthwith to
the clerk of the circuit court such record and all other papers of
the proceeding. Once the records of the proceeding are transmitted
to the clerk of the circuit court, the felony charge shall remain
within the sole jurisdiction of the circuit court and shall not be
remanded to the magistrate for any purpose.
[Effective July 1, 1988; amended effective January 1, 1993; July 1,
1994; September 1, 1995.]
RULE 5.2 OFFENSE ARISING IN ANOTHER COUNTY
(a) Appearance Before Magistrate. If a person is arrested on
a warrant issued upon a complaint, information or indictment, or
without a warrant for an offense alleged to have been committed in
a county other than the county of arrest, all papers in the
proceeding shall be promptly transmitted to a magistrate or circuit
court of the county having jurisdiction of the offense for
preliminary examination or trial. If the defendant is unable to
provide bail in the county of arrest, he or she shall be committed
to the custody of an officer who shall take the defendant without
unnecessary delay before a magistrate or judge of a circuit court
wherein the examination or trial is to be held, there to be dealt
with as provided by these rules.
(b) Arrest of Probationer. If a person is arrested for a
violation of probation in a county other than the county of
supervision, such person shall be taken without unnecessary delay
before the nearest available magistrate and then processed in
accordance with the provisions of subdivision (a) of this rule upon
the production of certified copies of the probation order, the
warrant, the application for the warrant and upon a finding that
the person before the magistrate is the person named in the
warrant.
(c) Arrest for Failure to Appear. If a person is arrested on
a warrant in a county other than that in which the warrant was
issued, and the warrant was issued because of the failure of the
person named therein to appear as required pursuant to subpoena or
the terms of that person's release, the person arrested shall be
taken without unnecessary delay before the nearest available
magistrate. Upon production of the warrant or a certified copy
thereof and upon a finding that the person before the magistrate is
the person named in the warrant, the magistrate shall hold the
person to answer in the county in which the warrant was issued.
(d) Bail. If bail was previously fixed in another county
where a warrant, information or indictment issued, the magistrate
shall take into account the amount of bail previously fixed and the
reasons set forth therefor, if any, but will not be bound by the
amount of bail previously fixed. If the magistrate fixes bail
different from that previously fixed, he or she shall set forth the
reasons for such action in writing.
[Adopted effective January 1, 1989; amended effective September 1,
1995.]
RULE 5.3 FAILURE TO APPEAR UPON A SUMMONS
The magistrate court clerk shall notify the prosecuting
attorney on a regular basis when a defendant fails to answer or
appear in response to a summons. The magistrate court clerk shall notify the Division of Motor Vehicles of such failure to answer or
appear in cases involving violations of any provision of Chapter
17, 17A, 17B, 17C or 17D of the West Virginia Code, and for any
criminal violation charged on or after July 9, 1993, with the
exception of parking violations or other unattended vehicle
violations. Notification shall be in the same form as that
provided by Rule 22 and Rule 7(e) of these Rules and shall be sent
within 15 days from the scheduled date to appear unless the
defendant answers or appears within that time.
Upon a motion by the prosecuting attorney, the magistrate may
issue a warrant for arrest of a defendant who without providing
good cause has failed to answer or appear at any stage of a
proceeding in response to a summons.
[Adopted effective September 1, 1993.]
RULE 6. AMENDMENT OF COMPLAINT, WARRANT, AND SUMMONS; HARMLESS
ERROR
(a) Amendment. Upon motion, the magistrate shall permit the
complaint, warrant, summons or any other document to be amended at
any time before verdict if no additional or different offense is
charged and if substantial rights of the defendant are not
prejudiced.
(b) Harmless Error. Error in the citation of the statute or
rule or regulation which the defendant is alleged to have violated, or the omission of the citation shall not be ground for dismissal
or for reversal of a conviction if the error or omission did not
mislead the defendant to his or her prejudice.
[Effective July 1, 1988; amended effective August 1, 1991.]
RULE 7. CITATION FOR TRAFFIC AND NATURAL RESOURCES OFFENSES
(a) Citation. In lieu of the procedures set forth in Rules 3
and 4 of these rules, a law enforcement officer may prepare and
serve a citation as the instrument charging a misdemeanor violation
of Chapter 17, 17A, 17B, or 17C, except as provided by West
Virginia Code §17C-19-3, 17D, or 20 of the West Virginia Code. The
citation must state the offense charged and notify the defendant of
the requirement to answer or appear in response to the charge, by
a date certain, in the magistrate court of the county where the
offense occurred.
(b) Pleas of Guilty or No Contest. The citation shall be a
sufficient document to which the defendant may plead guilty or no
contest. Before accepting a plea of guilty or no contest, the
magistrate shall inform the defendant of the charge and the
penalties the court may impose. The magistrate shall also advise
that the defendant has the right to be represented by an attorney,
that the defendant may plead not guilty to the charge and demand a
trial by jury in accordance with the time limits set forth in Rule
5(c) of these rules, and that by pleading guilty the defendant waives all of these rights.
(1) For violations of West Virginia Code §17B-4-3 (driving
while license suspended or revoked), West Virginia Code §17C-5-1
(negligent homicide), West Virginia Code §17C-5-2 (DUI), West
Virginia Code §17C-5-3 (reckless driving) and West Virginia Code
Chapter 20 offenses involving injury to the person, a plea of
guilty or no contest shall be made in person before a magistrate in
the county where the offense occurred.
(2) For all other citations such pleas of guilty or no contest
may also be made by telephone to a magistrate in the county where
the offense occurred. In such instances the magistrate, upon
advising the defendant, accepting the plea, and imposing the fine
and costs, shall direct the defendant to complete the guilty plea
form on the citation and to deliver by mail to the magistrate court
the citation and all fines and costs assessed.
(c) Plea of Not Guilty. A plea of not guilty to a traffic or
natural resources citation may be made in person before a
magistrate in the county in which the offense was charged, or by
mail to the magistrate court of such county. In such instances, a
complaint must be filed at or prior to trial which complies with
the probable cause requirements of Rule 4 and an initial appearance
conducted pursuant to the procedures set forth in Rule 5 of these
rules. Upon motion of the defendant, a continuance may be granted
if necessary to provide time to meet any new information set forth
in the complaint and if the refusal to grant such continuance would substantially prejudice the rights of the defendant.
(d) Motion to Dismiss. A defendant may seek dismissal of a
traffic or natural resources citation prior to trial by filing, on
a form provided by the magistrate court, a motion to dismiss. Such
motion shall state with particularity the grounds upon which
dismissal is sought. Upon receipt of such motion, the magistrate
court shall promptly forward a copy of such motion to the
prosecuting attorney. If upon 10 days from the date of delivery of
such motion to the prosecuting attorney no objection is made, the
magistrate may dismiss the citation. If within 10 days from the
date of delivery the prosecuting attorney objects to such motion,
the case shall proceed to hearing or trial.
(e) Failure to Appear. The magistrate court clerk on a
regular basis shall notify the prosecuting attorney of citations
for which the defendant failed to answer or appear. The magistrate
court clerk shall notify the Division of Motor Vehicles of all such
instances involving a failure to answer or appear in response to a
citation charging a violation of any provision of Chapter 17, 17A,
17B, 17C, or 17D of the West Virginia Code, and for any criminal
violation charged 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. Such notification shall be
provided in the same form as that provided by Rule 5.3 and Rule 22
of these Rules and shall be sent within 15 days from the scheduled
date to answer or appear unless the defendant answers or appears within that time.
Upon motion by the prosecuting attorney, the magistrate may
issue a warrant for the arrest of a defendant who without showing
good cause has failed to answer or appear at any stage of a
proceeding in response to a citation.
[Effective July 1, 1988; amended effective August 1, 1991;
September 1, 1993; July 1, 1994.]
RULE 8. CITATION FOR OTHER OFFENSES
In lieu of the procedures set forth in Rules 3 and 4 of these
Rules, a law enforcement officer may issue a citation for any
offense for which a citation in lieu of an arrest is authorized by
W.Va. Code §62-1-5a. For such citations, the procedures set forth
in Rules 7(a), 7(b)(1), 7(c), and 7(e) shall apply.
[Effective July 1, 1988; amended effective September 1, 1993.]
RULE 9. PLEA PROCEEDING
Except as otherwise provided by Rule 7(b), the plea proceeding
shall be conducted in open court and shall consist of reading the
complaint to the defendant or stating to the defendant the
substance of the charge and calling on the defendant to plead
thereto. The reading of the complaint may be waived by the defendant in open court. The defendant shall be given a copy of
the complaint before being called upon to plead.
[Effective July 1, 1988; amended effective September 1, 1993.]