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.]


RULE 10. PLEAS
(a) Alternatives. A defendant may plead not guilty, guilty, or, with the consent of the magistrate, no contest.
(b) Advice to Defendant. Before accepting a plea of guilty or no contest, the magistrate must address the defendant personally in open court and inform the defendant of, and determine that the defendant understands, the following:
(1) The nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law; and
(2) If the defendant is not represented by an attorney, that the defendant has the right to be represented by an attorney at every stage of the proceeding and, if necessary, one will be appointed to represent the defendant; and
(3) That the defendant has the right to plead not guilty or to persist in that plea if it has already been made, and that the defendant has the right to be tried by a jury and at that trial the right to the assistance of counsel, the right to confront and cross-examine adverse witnesses, the right against compelled self-incrimination, and the right to call witnesses; and
(4) That if a plea of guilty or no contest is accepted by the magistrate there will not be a further trial of any kind, so that by pleading guilty or no contest the defendant waives the right to a trial; and
(5) That upon a plea of guilty or no contest, the magistrate may question the defendant under oath, on the record, about the offense to which he or she has pleaded, and that the defendant's answers may later be used against him or her in a prosecution for false swearing.
(c) Ensuring That the Plea Is Voluntary. The magistrate shall not accept a plea of guilty or no contest without first, by addressing the defendant personally in open court, determining that the plea is voluntary and not the result of force or threats or of promises apart from a plea agreement. The magistrate shall also inquire as to whether the defendant's willingness to plead guilty or no contest results from prior discussions between the attorney for the state and the defendant or the defendant's attorney.
(d) Record of Proceedings. Before accepting a plea of guilty or no contest, the magistrate shall receive from the defendant, on a form provided by the magistrate, a statement signed by the defendant acknowledging that the magistrate has addressed the matters set forth in sections (b) and (c) of this rule.
(e) Withdrawal of Plea of Guilty or No Contest. A magistrate may neither entertain nor grant a motion to withdraw a plea of guilty or no contest.
[Effective July 1, 1988; amended effective January 1, 1989; August 1, 1991; September 1, 1995; September 1, 1996.]


RULE 11. NOTICE OF TRIAL
When a defendant enters a plea of not guilty to a misdemeanor complaint or notifies the court of the intent to plead not guilty or otherwise to contest a misdemeanor citation, the court shall promptly schedule a date and time for trial.
If the defendant is not in custody, all parties shall be notified by the court by first-class mail not less than 21 days before such date of trial. If the defendant is in custody, trial shall be scheduled for the earliest practical date and all parties promptly notified. All such notices shall contain:
(a) The date, place and time of trial;
(b) The name of the magistrate scheduled to hear the case;
(c) A statement of the time periods in which pretrial motions must be filed, in accordance with Rule 12;
(d) A statement of the manner in which pretrial motions may be filed;
(e) A statement of the restrictions upon continuances as set forth in Rule 12; and
(f) A statement of the manner by which motions for disqualification may be filed as set forth in Rule 1B of the Administrative Rules for Magistrate Courts.

[Effective July 1, 1988; amended effective March 1, 1997.]


RULE 12. PRETRIAL MOTIONS
(a) Time Periods. Unless good cause is shown as to why such requirements should be excused, the following motions, if made, shall be made in writing and shall be filed with the court and served upon all parties not less than 10 days before the first date scheduled for trial:
(1) Motion and affidavit for transfer to another magistrate;
(2) Motion for continuance; and
(3) Any other motion which, if granted, would require rescheduling of the hearing or trial.
The clerk, deputy clerk, or magistrate assistant shall provide appropriate forms on which such pretrial motions may be made.
All other pretrial motions may be made at any time in writing prior to trial, or may be made orally or in writing at time of trial.
(b) Continuance. A motion for a continuance may be granted only upon:
(1) Compliance with the requirements set forth in section (a) of this rule;
(2) A showing of good cause; and
(3) A reasonable effort by the magistrate to notify all parties and provide them with an opportunity to respond to the motion.

[Effective July 1, 1988; amended effective January 1, 1989; July 1, 1994; March 1, 1997.]


RULE 13. SERVICE AND FILING OF PAPERS
(a) Service. Written motions, notices, and similar papers shall be served upon each of the parties in the same manner as provided for service of such papers in civil actions in magistrate court.
(b) Filing. Papers required to be served shall be filed with the court in the same manner as provided for filing of papers in civil actions in magistrate court.

[Effective July 1, 1988.]


RULE 14. DISCOVERY AND INSPECTION; BILL OF PARTICULARS [RESERVED]


Reporter's Note
Statutory procedures regarding discovery and bills of particulars are set forth in W.Va. Code §§2-1B-1 to 62-1B-4.

Current with amendments received through 1-1-2003

RULE 15. 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.

[Effective July 1, 1988.]


RULE 16. DISMISSAL
(a) 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.
(b) 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.

[Effective July 1, 1988; amended effective August 1, 1991.]


RULE 16A. JOINDER AND RELIEF FROM PREJUDICIAL JOINDER
(a) 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.
(b) 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.
(c) No more than one defendant may be charged in one complaint or tried in one proceeding.

[Adopted effective August 1, 1991.]


RULE 17. TRIAL
(a) 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.
(b) 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.
(c) 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.
(d) 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.
(e) 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.
(f) 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.

[Effective July 1, 1988; amended effective July 1, 1994.]


RULE 18. VERDICT
(a) Return. The verdict shall be unanimous. It shall be returned by the jury to the magistrate in open court.
(b) 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.
(c) 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.
(d) 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.
[Effective July 1, 1988; amended effective September 1, 1995.]


RULE 19. SENTENCE
(a) Sentence shall be imposed in open court within 60 days of the finding of guilt.
(b) 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.
(c) The prosecuting attorney shall have an equivalent opportunity to speak to the court.

[Effective July 1, 1988; amended effective August 1, 1991; September 1, 1993.]


RULE 20. NEW TRIAL
(a) 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.
(b) The clerk, deputy clerk or magistrate assistant shall notify all parties of the time, place and date set for hearing on the motion.
(c) 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.
(d) 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.

[Effective July 1, 1988.]


RULE 20.1 APPEAL TO CIRCUIT COURT
(a) 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.
(b) 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.
(c) 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.
(d) 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.

[Adopted effective July 1, 1994.]


RULE 21. STAY OF EXECUTION
(a) The timely filing or granting of an appeal automatically stays the sentence of the magistrate.
(b) 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.

[Effective July 1, 1988; amended effective August 1, 1991; July 1, 1994.]


RULE 22. ENFORCEMENT OF JUDGMENTS
(a) 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.
(b) 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.

[Effective July 1, 1988; amended effective September 1, 1993.]


RULE 23. FORFEITURE OF BOND
(a) Declaration. If there is a breach of condition of a bond, the magistrate shall declare a forfeiture of the bail.
(b) 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.
(c) 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.
[Effective July 1, 1988.]


RULE 24. 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.

[Effective July 1, 1988.]


RULE 25. 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.

[Effective July 1, 1988.]


RULE 26. TIME
(a) 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.
(b) 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.
(c) 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.
(d) 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.

[Effective July 1, 1988; amended effective August 1, 1991.]


RULE 27. HARMLESS ERROR; CORRECTION OF SENTENCE; CLERICAL MISTAKES
(a) Harmless Error. Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.
(b) Correction of Sentence. The magistrate who entered judgment, or such magistrate's successor, may correct an illegal sentence at any time.
(c) 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.

[Effective July 1, 1988.]