H. B. 2295
(By Delegates Farris and Manuel)
[Introduced February 26, 1993; referred to the
Committee on the Judiciary.]
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 and the attorney general
on behalf of the state in criminal proceedings; and
establishing procedures to be followed in such 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, including, but not limited to, physical
evidence, identifications, and confessions or admissions.
(b) Appeals pursuant to 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 hereto 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.
(d) Pending the disposition of an appeal pursuant to thissection, 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. If the
defendant is in custody, he or she is entitled to a prompt
reconsideration of reasonable 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.
NOTE: The purpose of this bill is to permit prosecuting
attorneys and the Attorney General to appeal specified orders of
the circuit courts to the West Virginia Supreme Court of Appeals
on behalf of the state in criminal matters. The bill also
designates procedures to be followed in such appeals.
This section has been completely rewritten; therefore,
underscoring and strike-throughs have been omitted.