H. B. 2666
(By Delegate Fragale)
[Introduced February 23, 1995; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact section thirteen, article five,
chapter fifty of the code of West Virginia, one thousand
nine hundred thirty-one, as amended, relating to appeals in
Be it enacted by the Legislature of West Virginia:
That section thirteen, article five, 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 5. TRIALS, HEARINGS AND APPEALS.
§50-5-13. Appeals in criminal cases.
(a) Any person convicted of an offense in a magistrate court may appeal such conviction to circuit court as a matter of right
by requesting such appeal within twenty days after the sentencing
for such conviction. The magistrate may require the posting of
bond with good security conditioned upon the appearance of the
defendant as required in circuit court, but such bond may not
exceed the maximum amount of any fine which could be imposed for
the offense. The bond may be upon the defendant's own
recognizance. If no appeal is perfected within such twenty-day
period, the circuit court may, not later than ninety days after
the sentencing, grant an appeal upon a showing of good cause why
such appeal was not filed within the twenty-day period. The
filing or granting of an appeal shall automatically stay the
sentence of the magistrate.
(b) In the case of an appeal of a criminal proceeding tried
before a jury, the hearing on the appeal before the circuit court
shall be a hearing on the record. In the case of an appeal of a
criminal proceeding tried before the magistrate without a jury,
the hearing on the appeal before the circuit court shall be a trial de novo, triable to the court.
without a jury. The
defendant shall have the right to request a trial by jury upon
appeal to the circuit court.
(c) In the case of an appeal of a criminal proceeding tried
before a jury, the following provisions shall apply:
(1) To prepare the record for appeal, the defendant shall
file with the circuit court a petition setting forth the grounds
relied upon, and designating those portions of the testimony or
other matters reflected in the recording, if any, which he or she
will rely upon in prosecuting the appeal. The prosecuting
attorney may designate additional portions of the recording.
Unless otherwise ordered by the circuit court, the preparation of
a transcript of the portions of the recording designated by the
defendant, and the payment of the cost thereof shall be the
responsibility of the defendant: Provided, That such costs may
be waived due to the defendant's indigency. The circuit court
may, by general order or by order entered in a specific case,
dispense with preparation of a transcript and review the designated portions of the recording aurally.
(2) The designated portions of the recording or the
transcript thereof, as the case may be, and the exhibits,
together with all papers and requests filed in the proceeding,
constitute the exclusive record for appeal, and shall be made
available to the defendant and the prosecuting attorney.
(3) After the record for appeal is filed in the office of
the circuit clerk, the court may, in its discretion, schedule the
matter for oral argument or require the parties to submit written
memoranda of law. The circuit court shall consider whether the
judgment or order of the magistrate is:
(A) Arbitrary, capricious, an abuse of discretion or
otherwise not in conformance with the law;
(B) Contrary to constitutional right, power, privilege or
(C) In excess of statutory jurisdiction, authority or
limitations or short of statutory right;
(D) Without observance of procedure required by law;
(E) Unsupported by substantial evidence; or
(F) Unwarranted by the facts.
(4) The circuit court may take any of the following actions
which may be necessary to dispose of the questions presented on
appeal, with justice to the defendant and the state:
(A) Dismiss the appeal;
(B) Reverse, affirm, or modify the judgment or order being
(C) Remand the case for further proceedings, with
instructions to the magistrate;
(D) Finally dispose of the action by entering judgment on
(E) Retain the matter and retry the issues of fact, or some
part or portions thereof, as may be required by the provisions of
subdivision (5) of this subsection.
(5) If the circuit court finds that a record for appeal is
deficient as to matters which might be affected by evidence not
considered or inadequately developed, the court may proceed to take such evidence and make independent findings of fact to the
extent that questions of fact and law may merge in determining
whether the evidence was such, as a matter of law, as to require
a particular finding. If the party appealing the judgment is
also a party who elected to try the action before a jury in the
magistrate court, and if the circuit court finds that the
proceedings below were subject to error to the extent that the
party was effectively denied a jury trial, the circuit court may,
upon motion of the party, empanel a jury to re-examine the issues
of fact, or some part or portions thereof.
(6) The review by the court and a decision on the appeal
shall be completed within ninety days after the appeal is
regularly placed upon the docket of the circuit court.
(d) In the case of an appeal of a criminal proceeding tried
without a jury, the party seeking the appeal shall file with the
circuit court a petition for appeal and trial de novo. The
exhibits, together with all papers and requests filed in the
proceeding, constitute the exclusive record for appeal and shall be made available to the parties.
(e) Notwithstanding any other provision of this code to the
contrary, there shall be no appeal from a plea of guilty where
the defendant was represented by counsel at the time the plea was
entered: Provided, That the defendant shall have an appeal from
a plea of guilty where an extraordinary remedy would lie or where
the magistrate court lacked jurisdiction.
(f) This section, as amended in one thousand nine hundred
ninety-five, shall be in effect upon its passage and shall apply
to all cases then pending before the magistrate or circuit
NOTE: The purpose of this bill is to provide that a
criminal defendant who appeals a conviction from magistrate court
to circuit court may request a trial by jury.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.