ENROLLED
H. B. 2259
(By Delegates Staton, Fleischauer, Amores and Faircloth)
[Passed April 12, 1997; in effect ninety days from passage.]
AN ACT to amend and reenact section six, article one,
chapter fifty of the code of West Virginia, one thousand nine
hundred thirty-one, as amended; to amend and reenact section two,
article two of said chapter; to amend and reenact section two-a,
article three of said chapter; to amend and reenact sections two
and seven, article four of said chapter; to amend and reenact
section nine, article five of said chapter; to amend and reenact
section five, article one, chapter sixty-two of said code; and to
amend and reenact section five, article one-c of said chapter,
all relating to magistrate courts generally; to vacancies in the
office of magistrate; to venue and change of venue in magistrate
court criminal cases; enforcement of payment of costs, fines,
fees, forfeitures, restitution or penalties imposed by
magistrates in criminal cases; payment by credit card;
circumstances under which payment may be made in installments;
suspension of privilege to drive a motor vehicle if payment in
full is not timely made; procedure for obtaining a license to
drive for employment purposes; suspension of privilege to hunt if payment in full of amount imposed for hunting violation is not
timely made; suspension of privilege to fish if payment in full of amount imposed for fishing violation is not timely made;
enforcement of requirement to appear or respond in criminal
cases; suspension of privilege to drive motor vehicle if
defendant in criminal case fails to timely appear or respond when
required until final judgment, and, if convicted, until payment in
full of all costs, fines, fees, forfeitures, restitution or
penalties imposed; suspension of privilege to hunt if defendant
charged with hunting violation fails to timely appear or respond
when required until final judgment and, if convicted, until
payment in full of all costs, fines, fees, forfeitures,
restitution or penalties imposed; suspension of privilege to fish
if defendant charged with fishing violation fails to timely
appear or respond when required until final judgment and, if
convicted, until payment in full of all costs, fines, fees,
forfeitures, restitution or penalties imposed; authority of
magistrate to order restitution in criminal cases; duties of
magistrate clerk to issue and deliver abstracts of unpaid
judgments and releases of judgments; duties of prosecuting
attorney to file abstracts and releases of judgments; duties of
county clerk to record and index abstracts and releases of
judgments; commencement of criminal prosecutions; procedures to
be followed when disqualification of magistrate asserted; time
requirement to render a finding of guilty or not guilty and
impose a sentence in a magistrate criminal case; procedure for
delivery of prisoner before magistrate; complaint for person
arrested without warrant; and return of recognizance and
disposition of deposits.
Be it enacted by the Legislature of West Virginia:
That section six, article one, chapter fifty of the code of West Virginia, one thousand nine hundred thirty-one, as amended,
be amended and reenacted; that section two, article two of said
chapter be amended and reenacted; that section two-a, article
three of said chapter be amended and reenacted; that sections two
and seven, article four of said chapter be amended and reenacted;
that section nine, article five of said chapter be amended and
reenacted; that section five, article one, chapter sixty-two of
said code be amended and reenacted; and that section five,
article one-c of said chapter be amended and reenacted, all to
read as follows:
CHAPTER 50. MAGISTRATE COURTS.
ARTICLE 1. MAGISTRATE COURTS AND THIER OFFICERS.
§50-1-6. Vacancy in office of magistrate.
Subject to the provisions of section one, article ten,
chapter three of this code, when a vacancy occurs in the office
of magistrate, the judge of the circuit court, or the chief judge
thereof if there is more than one judge of the circuit court,
shall fill the same by appointment.
At a general election in which a magistrate is elected for
an unexpired term, the circuit judge, or the chief judge thereof
if there is more than one judge of the circuit court, shall cause
a notice of such election to be published prior to such election
as a Class II-0 legal advertisement in compliance with the
provisions of article three, chapter fifty-nine of this code, and
the publication area for such publication shall be the county
involved. If the vacancy occurs before the primary election held
to nominate candidates to be voted for at the general election,
at which any such vacancy is to be filled, candidates to fill
such vacancy shall be nominated at such primary election in accordance with the time requirements and the provisions and
procedures prescribed in article five, chapter three of this
code. Otherwise, they shall be nominated by the county executive
committee in the manner provided in section nineteen, article
five, chapter three of this code, as in the case of filling
vacancies in nominations, and the names of the persons so
nominated and certified to the clerk of the circuit court of such
county shall be placed upon the ballot to be voted at such next
general election.
ARTICLE 2. JURISDICTION AND AUTHORITY.
§50-2-2. Venue; change of venue.
(a) The provisions of article one, chapter fifty-six of this
code, relating to venue of actions in circuit courts, shall apply
to venue of actions in magistrate courts as if the same were set
forth fully herein.
(b) The circuit court may, on the petition of the accused
and for good cause shown, order the venue of the trial of a
criminal case in magistrate court to be removed to some other
county. Upon the filing of the petition, the proceedings in
magistrate court shall be stayed until disposition by the circuit
court. When the venue is so changed, the court making the order
shall determine the county to which the case is to be removed and
order the defendant to appear on some certain day before the
court to which the case is removed. Where the defendant is in
custody, the court may, if appropriate, order the defendant
confined in a jail convenient to the court to which the case is
removed.
Upon receipt of the order changing venue, the magistrate
court shall
certify copies of its file of the case to the court
to which the case is removed, and such court shall proceed with the case as if the
prosecution had been originally therein, and
for that purpose the certified copies aforesaid shall be
sufficient.
ARTICLE 3. COSTS, FINES AND RECORDS.
§50-3-2a. Payment by credit card or payment plan; suspension of
licenses for failure to make payments or appear or respond;
restitution; liens.
(a) A magistrate court may accept credit cards in payment of
all costs, fines, fees, forfeitures, restitution or penalties in
accordance with rules promulgated by the supreme court of
appeals. Any charges made by the credit company shall be paid by
the person responsible for paying the cost, fine, forfeiture or
penalty.
(b) Unless otherwise required by law, a magistrate court may
collect a portion of any costs, fines, fees, forfeitures,
restitution or penalties at the time the amount is imposed by the
court so long as the court requires the balance to be paid in
accordance with a payment plan which specifies: (1) The number of
payments to be made; (2) the dates on which such payments are
due; and (3) the amounts due for each payment.
(c)(1) If any costs, fines, fees, forfeitures, restitution
or penalties imposed by the magistrate court in a criminal case
are not paid within three months from the date of judgment and
the expiration of any stay of execution, the magistrate court
clerk or, upon judgment rendered on appeal, the circuit clerk
shall notify the commissioner of the division of motor vehicles
of the failure to pay. Upon such notice, the division of motor vehicles shall suspend any privilege the person defaulting on
payment may have to operate a motor vehicle in this state,
including any driver's license issued to the person by the
division of motor vehicles, until such time that all the costs,
fines, fees, forfeitures, restitution or penalties are paid in
full. The suspension shall be imposed in accordance with the
provisions of section six, article three, chapter seventeen-b of
this code: Provided, That any person who has had his or her
license to operate a motor vehicle in this state suspended
pursuant to this subsection and his or her failure to pay is
based upon inability to pay may, if he or she is employed on a
full or part-time basis, petition to the circuit court for an
order authorizing him or her to operate a motor vehicle solely
for employment purposes. Upon a showing satisfactory to the court
of inability to pay, employment and compliance with other
applicable motor vehicle laws, the court shall issue such an
order.
(2) In addition to the provisions of subdivision (1) of this
subsection, if any costs, fines, fees, forfeitures, restitution
or penalties imposed or ordered by the magistrate court for a
hunting violation described in chapter twenty of this code are
not paid within three months from the date of judgment and the
expiration of any stay of execution, the magistrate court clerk
or, upon a judgment rendered on appeal, the circuit clerk shall
notify the director of the division of natural resources of such
failure to pay. Upon such notice, the director of the division
of natural resources shall suspend any privilege the person failing to appear or otherwise respond may have to hunt in this
state, including any hunting license issued to the person by the
division of natural resources, until all the costs, fines, fees,
forfeitures, restitution or penalties are paid in full.
(3) In addition to the provisions of subdivision (1) of this
subsection, if any costs, fines, fees, forfeitures, restitution
or penalties imposed or ordered by the magistrate court for a
fishing violation described in chapter twenty of this code are
not paid within three months from the date of judgment and the
expiration of any stay of execution, the magistrate court clerk
or, upon a judgment rendered on appeal, the circuit clerk shall
notify the director of the division of natural resources of such
failure to pay. Upon such notice, the director of the division
of natural resources shall suspend any privilege the person
failing to appear or otherwise respond may have to fish in this
state, including any fishing license issued to the person by the
division of natural resources, until all the costs, fines, fees,
forfeitures, restitution or penalties are paid in full.
(d)(1) If a person charged with any criminal violation of
this code fails to appear or otherwise respond in court, the
magistrate court shall notify the commissioner of the division of
motor vehicles thereof within fifteen days of the scheduled date
to appear, unless the person sooner appears or otherwise responds
in court to the satisfaction of the magistrate. Upon such notice,
the division of motor vehicles shall suspend any privilege the
person failing to appear or otherwise respond may have to operate
a motor vehicle in this state, including any driver''s license issued to the person by the division of motor vehicles, until
final judgment in the case and, if a judgment of guilty, until
such time that all the costs, fines, fees, forfeitures,
restitution or penalties imposed are paid in full. The suspension
shall be imposed in accordance with the provisions of section
six, article three, chapter seventeen-b of this code.
(2) In addition to the provisions of subdivision (1) of this
subsection, if a person charged with any hunting violation
described in chapter twenty of this code fails to appear or
otherwise respond in court, the magistrate court shall notify the
director of the division of natural resources of such failure
thereof within fifteen days of the scheduled date to appear,
unless the person sooner appears or otherwise responds in court
to the satisfaction of the magistrate. Upon such notice, the
director of the division of natural resources shall suspend any
privilege the person failing to appear or otherwise respond may
have to hunt in this state, including any hunting license issued
to the person by the division of natural resources, until final
judgment in the case and, if a judgment of guilty, until such
time that all the costs, fines, fees, forfeitures, restitution or
penalties imposed are paid in full.
(3) In addition to the provisions of subdivision (1) of this
subsection, if a person charged with any fishing violation
described in chapter twenty of this code fails to appear or
otherwise respond in court, the magistrate court shall notify the
director of the division of natural resources of such failure
thereof within fifteen days of the scheduled date to appear, unless the person sooner appears or otherwise responds in court
to the satisfaction of the magistrate. Upon such notice, the
director of the division of natural resources shall suspend any
privilege the person failing to appear or otherwise respond may
have to fish in this state, including any fishing license issued
to the person by the division of natural resources, until final
judgment in the case and, if a judgment of guilty, until such
time that all the costs, fines, fees, forfeitures, restitution or
penalties imposed are paid in full.
(e) In every criminal case which involves a misdemeanor
violation, a magistrate may order restitution where appropriate
when rendering judgment.
(f)(1) If all costs, fines, fees, forfeitures, restitution
or penalties imposed by a magistrate court and ordered to be paid
are not paid within three months from the date of judgment and
the expiration of any stay of execution, the clerk of the
magistrate court shall notify the prosecuting attorney of the
county of such nonpayment and provide the prosecuting attorney
with an abstract of judgment. The prosecuting attorney shall
file the abstract of judgment in the office of the clerk of the
county commission in the county where the defendant was convicted
and in any county wherein the defendant resides or owns property.
The clerks of the county commissions shall record and index the
abstracts of judgment without charge or fee to the prosecuting
attorney, and when so recorded, the amount stated to be owing in
the abstract shall constitute a lien against all property of the
defendant.
(2) When all the costs, fines, fees, forfeitures,
restitution or penalties described in subdivision (12) of this
subsection for which an abstract of judgment has been recorded
are paid in full, the clerk of the magistrate court shall notify
the prosecuting attorney of the county of such payment and
provide the prosecuting attorney with a release of judgment,
prepared in accordance with the provisions of section one,
article twelve, chapter thirty-eight of this code, for filing and
recordation pursuant to the provisions of this subdivision. Upon
receipt from the clerk, the prosecuting attorney shall file the
release of judgment in the office of the clerk of the county
commission in each county where an abstract of the judgment was
recorded. The clerks of the county commissions shall record and
index the release of judgment without charge or fee to the
prosecuting attorney.
ARTICLE 4. PROCEDURE BEFORE TRIAL.
§50-4-2. Commencement of criminal prosecutions.
Except where the provisions of this code or rule of the
supreme court of appeals permit the commencement of a criminal
prosecution through the issuance of a citation, a criminal
prosecution shall be commenced by the filing of a complaint in
accordance with the requirements of rules of the supreme court of
appeals.
§50-4-7. Disqualification of magistrate.
A motion for the disqualification of a magistrate in a
magistrate court proceeding shall be filed in accordance with the requirements of the rules of the supreme court of appeals.
ARTICLE 5. TRIALS, HEARINGS AND APPEALS.
§50-5-9. Entry of judgment;Verdict and \ sentence.
(a) In every criminal case in which the defendant is in
custody, a magistrate shall render a finding of guilty or not
guilty immediately upon the conclusion of the trial or hearing.
In all other proceedings, a magistrate shall render a finding of
guilty or not guilty no later than the next succeeding day after
the conclusion of the trial or hearing, excluding Saturdays,
Sundays and legal holidays.
(b)(1) Sentence shall be imposed in open court within sixty
days from the date of the finding of guilt except where sentence
is required to be imposed within a lesser period under the
provisions of subdivision (2) of this subsection.
(2) Sentence shall be imposed in open court upon a defendant
in custody on or before the date of the expiration of the time
equivalent to the maximum sentence that may be imposed for the
offense. In determining the date, the magistrate shall include
in the computation any credit to which the defendant is entitled
for the time of confinement spent by the defendant in jail
awaiting trial and sentencing.
CHAPTER 62. CRIMINAL PROCEDURE.
ARTICLE 1. PRELIMINARY PROCEDURE.
§62-1-5. Same -- Delivery of prisoner before magistrate; complaint for person arrested without warrant; return.
(a) (1) An officer making an arrest under a warrant issued
upon a complaint, or any person making an arrest without a warrant for an offense committed in his presence or as otherwise
authorized by law, shall take the arrested person without
unnecessary delay before a
justice magistrate of the county
in which where the
arrest is made.
(2)
When If a person arrested without a warrant is brought before
a
justice magistrate, a complaint shall be filed
and a warrant issued forthwith
in accordance
with the requirements of rules of the supreme court of appeals.
(3)
The An officer executing
the a warrant shall make return
thereof to the
justice magistrate before whom the defendant is brought.
(b) (1) Notwithstanding any other provision of this code to
the contrary, if a person arrested without a warrant is brought
before a magistrate prior to the filing of a complaint, a
complaint shall be filed forthwith in accordance with the
requirements of rules of the supreme court of appeals, and the
issuance of a warrant or a summons to appear is not required.
(2) When a person appears initially before a magistrate
either in response to a summons or pursuant to an arrest with or
without a warrant, the magistrate shall proceed in accordance
with the requirements of the applicable provisions of the rules
of the supreme court of appeals.
ARTICLE 1C. BAIL.
§62-1C-5. Recognizance and deposits subject to order of court or
justice magistrate; reports by justices.
The recognizance shall be returnable to and all deposits
shall be held by
or subject to the order of the court
or justice before whom the defendant is to appear
or does appear initially, and upon the transfer of the case to any other court
or justice the recognizance shall be returnable to and transmitted
together with any deposits to such other court
. or justice. Each justice
of the peace shall during the first week of each month render
under oath to the prosecuting attorney of his county a true and
complete statement of all cash deposited as bail with such
justice during the preceding calendar month and of all cash
deposited as bail which is, on the date of the report, in his
possession. Such statement shall also set forth the name of each
defendant, the amount of the bail deposited during the preceding
month and the disposition of the same. The failure to render
such report complete in all respects as to the details required
herein shall be deemed a breach of the justice's official duty.
Adopted
Rejected
That section seven, article four, chapter fifty of the code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted, to read as follows:
ARTICLE 4. PROCEDURE BEFORE TRIAL.
§50-4-7. Disqualification of magistrate.
Any party to a civil or criminal proceeding before a
magistrate in any county wherein there is more than one
magistrate may file an affidavit that the magistrate before whom
the matter is pending has a personal bias or prejudice either
against him or in favor of any opposite party or that such
magistrate has counseled with any opposite party with respect to
the merits of the proceeding. The affidavit shall state the
facts and reasons for belief in the truth thereof. Such
affidavit must be filed within such time as may be provided by
the supervisory rules of the supreme court of appeals. The
supreme court of appeals shall provide a form affidavit which
shall be made available to all parties and which shall comply
with the requirements of this section.
Upon the timely filing of such affidavit, the magistrate
shall transfer all matters relating to the case to the magistrate
court clerk, who shall thereupon assign and transfer the matter
to be heard by some other magistrate within the county upon a
basis to be established by the judge of the circuit court, or the
chief judge thereof if there is more than one judge of the
circuit court. Such transfer and assignment shall be permitted,
however, only if there is some other magistrate in the county
before whom the matter had not been previously pending. No party
shall be entitled to cause such a transfer more than once.
The magistrate to whom the matter is assigned shall set a
new return date not more than five days from his receipt of the matter, shall notify all parties thereof, and shall proceed with
the matter as if it had been originally assigned to him A motion
for the disqualification of a magistrate in a magistrate court
proceeding shall be filed in accordance with the requirements of
the rules of the supreme court of appeals.
NOTE: The purpose of this bill is to clarify that an
assertion that a magistrate should be disqualified from presiding
over a magistrate proceeding must be pursued in a manner
consistent with the provisions of rules of the Supreme Court of
Appeals.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.
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