Senate Bill No. 548
(By Senators Craigo, Humphreys, Felton and Plymale)
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[Introduced March 22, 1993; referred to the Committee
on the Judiciary.]
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A BILL to amend and reenact section thirty, article five, chapter
fifty-eight of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, relating to appellate relief
in the supreme court of appeals; specifying types of orders
by a circuit court that may be appealed to the supreme court
of appeals by prosecuting attorneys on behalf of the state
in criminal proceedings; and establishing procedures to be
followed in these appeals.
Be it enacted by the Legislature of West Virginia:
That section thirty, article five, chapter fifty-eight of
the code of West Virginia, one thousand nine hundred thirty-one,
as amended, be amended and reenacted to read as follows:
ARTICLE 5. APPELLATE RELIEF IN SUPREME COURT OF APPEALS.
§58-5-30. Appeals by state in criminal proceedings.
(a) The prosecuting attorney or the attorney general on
behalf of the state may appeal on issues of law the following
orders of the circuit court to the supreme court of appeals:
(1) An order or judgment quashing, setting aside or
dismissing any case, indictment, information, warrant or criminal
complaint, or any count or portion thereof;
(2) An order granting a new trial;
(3) An order arresting judgment;
(4) A ruling on a question of law adverse to the state, if
the defendant was convicted and appeals from the judgment;
(5) A sentence or order of probation on the ground that it
is illegal and not authorized by law;
(6) A pretrial order preventing the prosecution from
obtaining evidence or an order granting a motion for the
suppression of evidence, or an order granting a motion limiting
the use of evidence, including, but not limited to, physical
evidence, identifications and confessions or admissions.
(b) Appeals pursuant to subdivision (6), subsection (a) of
this section may be taken (i) only when the prosecuting attorney
certifies that the appeal is not taken for the purpose of delay,
(ii) the evidence affected by the circuit court's order, if any,
is essential to the just prosecution of the case, and (iii) the
circuit court's order substantially prejudices the prosecution of
the case. Interlocutory appeals filed pursuant thereto shall be
given priority if accepted for review by the supreme court of
appeals.
(c) Appeals by the state shall be filed within fifteen days
of the entry of the circuit court order or the ruling made in
court, whichever is earlier, except in the case of an appeal bythe state pursuant to subdivision (4), subsection (a) of this
section, in which case the appeal by the state shall be filed
within fifteen days, following the filing of the defendant's
petition of appeal.
(d) Pending the disposition of an appeal pursuant to this
section, all other proceedings in the case shall be stayed.
(e) If the state appeals pursuant to this section and the
defendant is on bail, he or she shall be permitted to remain at
large pursuant to the terms of the existing bail provided by law,
unless the appeal is from an order which would terminate the
prosecution, in which event the defendant is entitled to release
on a personal recognizance bond with such conditions as
permissible pursuant to law.
(f) The rules of appellate procedure for the West Virginia
supreme court of appeals apply to petitions by the state for
review pursuant to this section, except as otherwise provided
herein.
(g) A defendant has full appellate rights to defend against
any petition of appeal initiated by the state, and he or she may
cross-allege errors as to any orders or judgments appealed by the
state. The defendant has the right to representation by counsel
and, if indigent, shall be represented by court-appointed counsel
without cost during the appellate proceedings if requested by the
defendant.
NOTE: The purpose of this bill is to permit prosecutingattorneys to appeal specified orders of the circuit courts to the
West Virginia Supreme Court of Appeals on behalf of the state in
criminal matters. This bill also designates procedures to be
followed in appeals.
This section has been completely rewritten; therefore,
strike-throughs and underscoring have been omitted.
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