COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 548
(By Senators Craigo, Humphreys, Felton and Plymale)
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[Originating in the Committee on the Judiciary;
reported March 26, 1993.]
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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
and defendants where the state appeals 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 on behalf of the state may
petition the supreme court of appeals for an appeal on issues oflaw from the following decisions, judgments or orders of the
circuit court:
(1) An order or judgment quashing, setting aside or
dismissing any case, indictment, information, warrant or criminal
complaint, or any count thereof;
(2) An order granting a new trial;
(3) An order granting arrest of judgment pursuant to West
Virginia rule of criminal procedure 34;
(4) A sentence or order of probation that is not authorized
by law;
(5) A pretrial order preventing the prosecution from
obtaining physical evidence from the person of a defendant for
purposes of scientific testing or an order suppressing evidence;
or
(6) An order requiring the return of seized property, not
made after the defendant has been put in jeopardy and before the
verdict or finding on an indictment or information.
(b) A ruling adverse to the state on a question of law may
be cross-assigned as error on appeal if the defendant was
convicted and appeals from the judgment.
(c) Appeals pursuant to subdivision (5) or (6), subsection
(a) of this section may be taken only when the prosecuting
attorney certifies and the circuit court finds that the appeal is
not taken for the purpose of delay and that the evidence affected
by the circuit court's order constitutes substantial proof of a
fact material in the proceedings which is not otherwise provable.
Interlocutory appeals filed pursuant thereto shall be given
priority if accepted for review by the supreme court of appealsand the supreme court of appeals may, by rule of appellate
procedure, provide for an expedited procedure in interlocutory
appeals brought pursuant to said subdivisions.
(d) Appeals by the state shall be filed with the clerk of
the circuit court having jurisdiction within thirty days of the
entry of the circuit court order or the ruling made in court,
whichever is earlier.
(e) Pending the disposition of an appeal pursuant to this
section, all other proceedings in the case which are affected by
the order or ruling, including trial, shall be stayed and all
statutory speedy trial provisions running against the state,
including the provisions of sections one and twenty-one of
article three, chapter sixty-two of this code, shall be tolled
pending the disposition of the appeal by the supreme court of
appeals.
(f) 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. If the
defendant is in custody or if the appeal is from an order which
would terminate the prosecution, he or she, on request, is
entitled to a prompt reconsideration of the amount, terms and
conditions of bail or recognizance.
(g) 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.
(h) A defendant has full appellate rights to defend against
any petition of appeal initiated by the state, and he or she mayallege error as to any rulings, orders or judgments made or
entered by the court in the proceeding. The defendant shall have
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.
(i) Notwithstanding any provision of this code to the
contrary, no appeal shall lie where the double jeopardy
provisions of the United States Constitution or the constitution
of the state of West Virginia prohibit further prosecution.
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(NOTE: The purpose of this bill is to permit prosecuting
attorneys 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.)
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