X. GENERAL PROVISIONS
RULE 43. PRESENCE OF THE DEFENDANT
(a) Presence Required. The defendant shall be present at the
arraignment, at the time of the plea, at every stage of the trial
including the impaneling of the jury and the return of the verdict,
and at the imposition of sentence, except as otherwise provided by
this rule.
(b) Continued Presence Not Required. The further progress of the trial to and including the return of the verdict shall not be
prevented and the defendant shall be considered to have waived the
right to be present whenever a defendant, initially present:
(1) Is voluntarily absent after the trial has commenced
(whether or not the defendant has been informed by the court of the
obligation to remain during the trial); or
(2) After being warned by the court that disruptive conduct
will cause his or her removal from the courtroom, persists in
conduct which is such as to justify exclusion from the courtroom.
(c) Presence Not Required. A defendant need not be present in
the following situations:
(1) A corporation may appear by counsel for all purposes.
(2) In prosecutions for offenses punishable by fine or by
imprisonment for not more than one year or both, the court, with
the written consent of the defendant, may permit arraignment, plea,
trial and imposition of sentence in the defendant's absence.
(3) At a conference or argument upon a technical question of
law not depending upon facts within the personal knowledge of the
defendant.
(4) At a reduction of sentence under Rule 35.
[Effective October 1, 1981; amended effective September 1, 1995.]
X. GENERAL PROVISIONS
RULE 44. RIGHT TO AND ASSIGNMENT OF COUNSEL
(a) Right to Assigned Counsel. Every defendant who is unable to obtain counsel shall be entitled to have counsel assigned to
represent him or her at every stage of the proceedings from initial
appearance before the magistrate or the court through appeal,
unless the defendant waives such appointment.
(b) Assignment Procedure. The procedures for implementing the
rights set out in subdivision (a) shall be those provided by
Chapter 51, Article 11, Section 1, et seq., of the West Virginia
Code of 1931, as amended, and by local rules of court established
pursuant thereto.
(c) Joint Representation. Whenever two or more defendants
have been jointly charged pursuant to Rule 8(b) or have been joined
for trial pursuant to Rule 13, and are represented by the same
retained or assigned counsel or by retained or assigned counsel who
are associated in the practice of law, the court shall promptly
inquire with respect to such joint representation and shall
personally advise each defendant of the right to effective
assistance of counsel, including separate representation. Unless
it appears that there is good cause to believe no conflict of
interest is likely to arise, the court shall take such measures as
may be appropriate to protect each defendant's right to counsel.
[Effective October 1, 1981; amended effective September 1, 1995.]
X. GENERAL PROVISIONS
RULE 45. TIME
(a) Computation. In computing any period of time, the day of the act or event from which the designated period of time begins to
run shall not be included. The last day of the period so computed
shall be included, unless it is a Saturday, a Sunday, or a legal
holiday, or when the act to be done is the filing of some paper in
court, a day on which weather or other conditions have made the
office of the clerk of the court inaccessible, in which event the
period runs until the end of the next day which is not one of the
aforementioned days. When a period of time prescribed or allowed
is less than seven days, intermediate Saturdays, Sundays and legal
holidays shall be excluded in the computation. As used in these
rules, legal holiday includes New Year's Day, Martin Luther King,
Jr.'s Birthday, Washington's Birthday, Memorial Day, Independence
Day, Labor Day, Columbus Day, Veterans Day, Thanksgiving Day,
Christmas Day and any other day appointed as a holiday by the
governor or the legislature of West Virginia and all holidays as
set forth in Chapter 2, Article 2, Section 1, of the West Virginia
Code of 1931, as amended.
(b) Enlargement. When an act is required or allowed to be
done at or within a specified time, the court for cause shown may
at any time in its discretion:
(1) With or without motion or notice, order the period
enlarged if request therefor is made before the expiration of the
period originally prescribed or as extended by a previous order; or
(2) Upon motion made after the expiration of the specified
period, permit the act to be done if the failure to act was the result of excusable neglect; but the court may not extend the time
for taking any action under Rules 29, 33, 34 and 35, except to the
extent and under the conditions stated in them.
(c) Unaffected by Expiration of Term. The period of time
provided for the doing of any act or the taking of any proceeding
is not affected or limited by the expiration of a term of court.
The expiration of a term of court in no way affects the power of a
court to do any act in a criminal proceeding.
(d) For Motions; Affidavits. A written motion, other than one
which may be heard ex parte, and notice of the hearing thereof
shall be served not later than five days before the time specified
for the hearing unless a different period is fixed by rule or order
of the court. For cause shown such an order may be made on ex
parte application. When a motion is supported by affidavit, the
affidavit shall be served with the motion; and opposing affidavits
may be served not less than one day before the hearing unless the
court permits them to be served at a later time.
(e) Additional Time After Service by Mail. Whenever a party
has the right or is required to do an act within a prescribed
period after the service of a notice or other paper upon that party
and the notice or other paper is served by mail, three days shall
be added to the prescribed period.
[Effective October 1, 1981; amended effective September 1, 1995.]
X. GENERAL PROVISIONS
RULE 46. RELEASE FROM CUSTODY
(a) Release Prior to Trial. Eligibility for release prior to
trial shall be in accordance with Chapter 62, Article 1C, Section
1 of the West Virginia Code of 1931, as amended.
(b) Release During Trial. A person released before trial
shall continue on release during trial under the same terms and
conditions as were previously imposed unless the court determines
that other terms and conditions or termination of release is
necessary to assure such person's presence during the trial or to
assure that his or her conduct will not obstruct the orderly and
expeditious progress of the trial.
(c) Pending Sentence and Notice of Appeal. Eligibility for
release pending sentence or pending notice of intent to appeal or
expiration of the time allowed for filing notice of appeal shall be
in accordance with Chapter 62, Article 1C, Section 1(b), of the
West Virginia Code of 1931, as amended. The burden of establishing
that the defendant will not flee or pose a danger to any other
person or to the community rests with the defendant. The burden of
establishing eligibility for bail under this subsection rests with
the defendant.
(d) Justification of Sureties. Every surety, except a surety
which is approved as provided by law, shall justify by affidavit
and may be required to describe in the affidavit the property by
which the surety proposes to justify and the encumbrances thereon,
the number and amount of other bonds and undertakings for bail entered into by the surety, and remaining undischarged, and all the
other liabilities of the surety. No bond shall be approved unless
the surety thereon appears to be qualified. Any surety or bond
required by this rule may be approved by any magistrate or circuit
judge permitted to accept the same.
(e) Forfeiture.
(1) Declaration. If there is a breach of condition of a bond,
the circuit court shall declare a forfeiture of the bail.
(2) Setting Aside. The court may direct that a forfeiture be
set aside, upon such conditions as the court may impose, if it
appears that justice does not require the enforcement of the
forfeiture.
(3) Enforcement. When a forfeiture has not been set aside,
the circuit court shall on motion 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 circuit court 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 Chapter 62, Article 1C, Section
9 of the West Virginia Code of 1931, as amended.
(4) Remission. After entry of such judgment, the court may
remit it in whole or in part under the conditions applying to the
setting aside of forfeiture in paragraph (2) of this subdivision.
(f) Exoneration. When the condition of the bond has been
satisfied or the forfeiture thereof has been set aside or remitted,
the court shall exonerate the obligors and release any bail, and if
the bail be in a form other than a recognizance, the deposit shall
be returned to the person who made the same. A surety may be
exonerated by a deposit of cash in the amount of the bond or by a
timely surrender of the defendant into custody.
(g) Supervision of Detention Pending Trial. The court shall
exercise supervision over the detention of defendants and witnesses
within the county pending trial for the purpose of eliminating all
unnecessary detention. The attorney for the state shall make a
biweekly report to the court listing each defendant and witness who
has been held in custody pending indictment, arraignment or trial
for a period in excess of 10 days. As to each witness so listed,
the attorney for the state shall make a statement of the reasons
why such witness should not be released with or without the taking
of a deposition pursuant to Rule 15(a). As to each defendant so
listed, the attorney for the state shall make a statement of the
reasons why the defendant is still held in custody.
(h) Bail Determination Hearings. Upon motion of the defendant
for release pursuant to subdivisions (a), (b) or (c) of this rule,
the court or magistrate exercising jurisdiction over the case shall
immediately order a hearing to determine the defendant's
eligibility for bail or release or to determine the amount of bail.
(1) Time of Hearing. The hearing shall be held within a reasonable time not later than five days after the filing of the
motion, but:
(A) With the consent of the defendant and upon a showing of
cause, the hearing may be continued one or more times; and
(B) In the absence of the defendant, the hearing may be
continued only upon a showing that extraordinary circumstances
exist and that the delay is indispensable to the interests of
justice.
(2) Procedures. The magistrate or circuit court shall issue
process necessary to summon witnesses within the state for either
the attorney for the state or the defendant. Both the attorney for
the state and the defendant may offer evidence in their behalf.
Each witness, including a defendant testifying in his or her own
behalf, shall testify under oath or affirmation and may be
cross-examined. The magistrate or circuit court may make any order
with respect to the conduct of the hearing that such magistrate or
judge could make at the trial of a criminal case.
(3) Testimony of Defendant. A defendant who testifies at the
hearing may nonetheless decline to testify at trial, in which case
his or her testimony at the hearing is not admissible in evidence.
If the defendant testifies at trial, his or her testimony at the
hearing is admissible in evidence to the extent permitted by law.
(4) Evidence. Objections to evidence on the ground that it
was acquired by unlawful means are not properly made by any hearing
under this subsection. Hearsay evidence may be received, if there is a substantial basis for believing:
(A) That the source of hearsay is credible;
(B) That there is a factual basis for the information
furnished; and
(C) 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.
(5) Finding and Disposition. The magistrate or circuit court
shall expeditiously upon receipt of all the evidence make a ruling
on defendant's motion and shall, in addition, find the facts
specially and state separately its conclusions of law thereon. The
findings shall be in writing. If an opinion or memorandum of
decision is filed, it will be sufficient if the findings of fact
and conclusions of law appear therein.
(i) Production of Statements.
(1) In General. Rule 26.2(a)-(d) and (f) applies at a
detention hearing, unless the court, for good cause shown, rules
otherwise in a particular case.
(2) Sanctions for Failure to Produce Statement. If a party
elects not to comply with an order under Rule 26.2(a) to deliver a
statement to the moving party, at the detention hearing the court
may not consider the testimony of a witness whose statement is
withheld.
[Effective October 1, 1981; amended effective February 1, 1985;
September 1, 1995.]
X. GENERAL PROVISIONS
RULE 47. MOTIONS
An application to the court for an order shall be by motion.
A motion other than one made during a trial or hearing shall be in
writing unless the court permits it to be made orally. It shall
state the grounds upon which it is made and shall set forth the
relief or order sought. It may be supported by affidavit.
[Effective October 1, 1981.]
X. GENERAL PROVISIONS
RULE 48. DISMISSAL
(a) By Attorney for State. The attorney for the state may by
leave of court file a dismissal of an indictment, information or
complaint, and the prosecution shall thereupon terminate. Such a
dismissal may not be filed during the trial without the consent of
the defendant.
(b) By Court. If there is unnecessary delay of more than one
year in presenting the charge to a grand jury or in filing an
information against a defendant who has been held to answer to the
circuit court, the court shall, on its own motion, dismiss the
indictment, information or complaint, without prejudice. If there
is unnecessary delay in bringing a defendant to trial, the court
may, upon proper motion, dismiss the indictment, information or
complaint.
[Effective October 1, 1981; amended effective January 1, 1993;
September 1, 1995.]
X. GENERAL PROVISIONS
RULE 49. SERVICE AND FILING OF PAPERS
(a) Service: When Required. Written motions other than those
which are heard ex parte, written notices, designations of record
on appeal, and similar papers shall be served upon each of the
parties.
(b) Service: How Made. Whenever under these rules or by an
order of the court service is required or permitted to be made upon
a party represented by an attorney, the service shall be made upon
the attorney unless service upon the party personally is ordered by
the court. Service upon the attorney or upon a party shall be made
in the manner provided in civil actions.
(c) Notice of Orders. Immediately upon the entry of an order
made on a written motion subsequent to arraignment, the clerk shall
mail to each party a notice thereof and shall make a note in the
docket of the mailing. Lack of notice of the entry by the clerk
does not affect the time to appeal or relieve or authorize the
court to relieve a party for failure to appeal within the time
allowed.
(d) Filing. Papers required to be served shall be filed with
the court. Papers shall be filed in the manner provided in civil
actions.
[Effective October 1, 1981; amended effective September 1, 1995.]
X. GENERAL PROVISIONS
RULE 50. CALENDARS
The circuit courts may provide for placing criminal
proceedings upon appropriate calendars. Preference shall be given
to criminal proceedings as far as practicable.
[Effective October 1, 1981.]
X. GENERAL PROVISIONS
RULE 51. EXCEPTIONS UNNECESSARY
Exceptions to rulings or orders of the court are unnecessary
and for all purposes for which an exception has heretofore been
necessary it is sufficient that a party, at the time the ruling or
order of the court is made or sought, makes known to the court the
action which that party desires the court to take or his or her
objection to the action of the court and the grounds therefor; but
if a party has no opportunity to object to a ruling or order, the
absence of an objection does not thereafter prejudice that party.
[Effective October 1, 1981; amended effective September 1, 1995.]
X. GENERAL PROVISIONS
RULE 52. HARMLESS ERROR AND PLAIN ERROR
(a) Harmless Error. Any error, defect, irregularity, or
variance which does not affect substantial rights shall be
disregarded.
(b) Plain Error. Plain errors or defects affecting
substantial rights may be noticed although they were not brought to
the attention of the court.
[Effective October 1, 1981.]
X. GENERAL PROVISIONS
RULE 53. REGULATION OF CONDUCT IN THE COURTROOM
Except as permitted by the guidelines established by the
Supreme Court of Appeals of West Virginia, the taking of
photographs in the courtroom during the progress of judicial
proceedings or radio broadcasting of judicial proceedings from the
courtroom shall not be permitted by the court.
[Effective October 1, 1981.]
X. GENERAL PROVISIONS
RULE 54. APPLICATION AND EXCEPTION
(a) Courts. These rules apply to all criminal proceedings in
the circuit courts of West Virginia and to the extent specified in
the rules to magistrate courts.
(b) Proceedings.
(1) Peace Bonds. These rules do not alter the power of judges
of the circuit court or of magistrates to hold to security of the
peace and for good behavior under Chapter 62, Article 6, Section 1,
et seq., and Chapter 62, Article 10, Section 1, et seq. of the West
Virginia Code of 1931, as amended, but in such cases the procedure shall conform to these rules so far as they are applicable and not
inconsistent with the above statutory provisions.
(2) Proceedings Before Magistrates. Proceedings involving
misdemeanor offenses before magistrates as specified in Chapter 50,
Article 2, Section 3, of the West Virginia Code of 1931, as
amended, are governed by Chapter 62, Article 1, Section 5, of the
West Virginia Code of 1931, as amended.
(3) Other Proceedings. These rules are not applicable to
extradition and rendition of fugitives. Except as expressly
provided within these rules they do not apply to proceedings under
Chapter 49, Article 5, Section 1, et seq. of the West Virginia Code
of 1931, as amended, juvenile delinquency so far as they are
inconsistent with that statute.
(c) Application of Terms. As used in these rules, the
following terms have the designated meanings:
(1) State statute includes any act of the West Virginia
legislature.
(2) Attorney for the state means, where appropriate, the
Attorney General, an authorized assistant of the Attorney General,
a prosecuting attorney and an authorized assistant of a prosecuting
attorney.
(3) Civil action refers to a civil action in a circuit court.
(4) The words demurrer, motion to quash, plea in abatement,
plea in bar, and special plea in bar, or words to the same effect,
in any state statute shall be construed to mean the motion raising a defense or objection provided in Rule 12.
(5) Circuit Court includes all courts in this state having
jurisdiction pursuant to Article 8, Section 6 of the Constitution
of West Virginia.
(6) Law includes the constitution of this state, the common
law, statutes and the judicial decisions construing them.
(7) Misdemeanor offense is defined in Chapter 61, Article 11,
Section 1 of the West Virginia Code of 1931, as amended.
(8) Oath includes affirmation.
(9) State means the State of West Virginia.
[Effective October 1, 1981; amended effective September 1, 1995.]
X. GENERAL PROVISIONS
RULE 55. RECORDS
The clerk of the circuit court and the clerk of the magistrate
court shall keep records in criminal proceedings in such form as
the Supreme Court of Appeals may prescribe. The clerk shall enter
in the records each order or judgment of the court and the date
such entry is made.
[Effective October 1, 1981; amended effective February 1, 1985;
September 1, 1995.]
X. GENERAL PROVISIONS
RULE 56. COURTS AND CLERKS
The circuit court shall be deemed always open for the purpose of filing any proper paper, of issuing and returning process, and
of making motions and orders. The clerk's office with the clerk or
a deputy in attendance shall be open during business hours on all
days except Saturdays, Sundays, and legal holidays, but a court may
provide by local rule or order that its clerk's office shall be
open for specified hours on Saturdays or particular legal holidays
other than New Year's Day, Washington's Birthday, Memorial Day,
Independence Day, Labor Day, Veterans Day, Thanksgiving Day, and
Christmas Day.
[Effective October 1, 1981.]
X. GENERAL PROVISIONS
RULE 57. RULES OF COURT
(a) Rules by Circuit Court. Local rules may be made by
circuit courts for the conduct of criminal proceedings, but they
shall be consistent with these rules. Such rules and any
amendments thereof shall be effective only after they are filed and
approved by the Supreme Court of Appeals, which may order printing
of such rules. When approved by the Supreme Court of Appeals, such
rules shall be recorded in the criminal order book of the local
court and copies shall be made available to the public.
(b) Procedure Not Otherwise Specified. If no procedure is
specifically prescribed by rule, the court may proceed in any
lawful manner not inconsistent with these rules or with any
applicable statute.
[Effective October 1, 1981; amended effective September 1, 1995.]
X. GENERAL PROVISIONS
RULE 58. FORMS [ABROGATED]
[Abrogated effective February 1, 1985.]
X. GENERAL PROVISIONS
RULE 59. EFFECTIVE DATE
These rules shall take effect on October 1, 1981. They govern
all proceedings in actions brought after they take effect and also
further proceedings in actions then pending, except to the extent
that in the opinion of the circuit court their application in a
particular action pending when the rules take effect would not be
feasible or would work injustice, in which event the former
procedure applies.
[Effective October 1, 1981.]
X. GENERAL PROVISIONS
RULE 60. TITLE
These rules may be known and cited as the West Virginia Rules
of Criminal Procedure and may be cited as WV Rules of Criminal
Procedure.
[Effective October 1, 1981; amended effective September 1, 1995.]