ENROLLED
Senate Bill No. 561
(By Senators Wooton, Ball, Dittmar, Fanning, Hunter, Oliverio,
Ross, Snyder, White, Buckalew, Deem and Scott)
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[Passed April 20, 1997; to take effect July 1, 1997.]
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AN ACT to amend and reenact section two, article ten, chapter eight
of the code of West Virginia, one thousand nine hundred
thirty-one, as amended; and to amend and reenact section one,
article thirty-four of said chapter, all relating to municipal
powers, authority and duties, requiring police court and
municipal court judges to complete mandatory training;
providing that those courts will follow the magistrate
procedural rules; providing for appeals from mayoral judicial
exercise, police court or municipal court to circuit court;
creating time frames, bonds, and stays for such appeals;
providing limited record of such court proceedings; providing
for the preparation and designation of such records for
appeal, electronic recordation of trials and preparation of
transcripts of such proceedings; providing circuit court
discretion to schedule oral argument, receive memoranda of
law, and take evidence; providing factors for the circuit court to consider on such appeal and the time frame for
circuit court review of such proceedings; and providing
actions which the circuit court may take to dispose of such
appeals.
Be it enacted by the Legislature of West Virginia:
That section two, article ten, chapter eight of the code of
West Virginia, one thousand nine hundred thirty-one, as amended, be
amended and reenacted; and that section one, article thirty-four of
said chapter be amended and reenacted, all to read as follows:
ARTICLE 10. POWERS AND DUTIES OF CERTAIN OFFICERS.
PART II. POLICE COURT OR MUNICIPAL COURT.
§8-10-2. Police court or municipal court for municipalities.
(a) Notwithstanding any charter provision to the contrary, any
city may provide by charter provision and any municipality may
provide by ordinance for the creation and maintenance of a police
or municipal court, for the appointment or election of an officer
to be known as police court judge or municipal court judge, and for
his or her compensation, and authorize the exercise by the court or
judge of the jurisdiction and the judicial powers, authority and
duties set forth in section one of this article and similar or
related judicial powers, authority and duties enumerated in any
applicable charter provisions, as set forth in the charter or
ordinance.
(b) Effective the fifteenth day of July, one thousand nine hundred ninety-seven, any person who assumes the duties of police
judge or municipal court judge shall attend and complete the next
available course of instruction in rudimentary principles of law
and procedure which shall be given in accordance with the
supervisory rules of the supreme court of appeals, unless he or she
has been admitted to the practice of law in this state. Any police
or municipal judge serving on the fifteenth day of July, one
thousand nine hundred ninety-seven, shall complete such course
within one year, unless he or she has been admitted to the practice
of law in this state. Any police or municipal judge may,
thereafter, attend a course for the purpose of continuing
education. The cost of any course referred to in this section
shall be paid by the municipality which employs the police or
municipal judge.
(c) When a police court or municipal court conducts a trial by
jury in a criminal matter, it shall follow the procedures set forth
in the rules of procedure for magistrate courts promulgated by the
supreme court of appeals except that the jury in police court or
municipal court shall consist of twelve members.
ARTICLE 34. JUDICIAL REVIEW.
§8-34-1. General right of appeal; recordation of jury trial;
preparation of record.
(a) Every person sentenced under this chapter by any mayor,
acting in a judicial capacity, or police court judge or municipal court judge to imprisonment or to the payment of a fine may appeal
that sentence to the circuit court as provided in this section.
When the municipality is located in more than one county, the
appeal shall be taken to the circuit court of the county in which
the major portion of the territory of the municipality is located.
(b) For purposes of appeal, when a jury trial is had before a
mayor or in police court or municipal court, that court shall be a
court of limited record. Trials before a mayor or police or
municipal court when a jury is empaneled shall be recorded
electronically. A magnetic tape or other electronic recording
medium on which a trial is recorded shall be indexed and securely
preserved by that court. When requested by the prosecutor or by
the defendant, or by any interested person, that court shall
provide a duplicate copy of the tape or other electronic recording
medium of each trial held. For evidentiary purposes, a duplicate
of such electronic recording prepared by that court shall be a
"writing" or "recording" as those terms are defined in rule 1001 of
the West Virginia rules of evidence, and unless the duplicate is
shown not to reflect the contents accurately, it shall be treated
as an original in the same manner that data stored in a computer or
similar data is regarded as an "original" under such rule. Unless
the requesting party is a defendant proceeding as an indigent, the
party shall pay to the court an amount equal to the actual cost of
the tape or other medium or the sum of five dollars, whichever is greater.
(c) If the defendant in such a proceeding waives the right to
trial by jury or if no jury trial is required by law, the matter
shall be tried by the mayor, police court or municipal court
sitting without a jury. For purposes of appeal, when a nonjury
trial is had before a mayor or in police court or municipal court,
that court shall not be a court of limited record and the
proceedings shall not be electronically recorded.
(d) Any person convicted of an offense by a mayor or in a
police court or municipal 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 mayor,
police court or municipal court judge 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
mayor, police court or municipal court.
(e) In the case of an appeal of such a 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 such a
proceeding tried before the mayor, police judge or municipal judge
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.
(f) In the case of an appeal of such a 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 prosecutor 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
indigence. 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 prosecutor.
(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 mayor, police court or municipal court is:
(A) Arbitrary, capricious, an abuse of discretion or otherwise
not in conformance with the law;
(B) Contrary to constitutional right, power, privilege or
immunity;
(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 the 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 municipality:
(A) Dismiss the appeal;
(B) Reverse, affirm, or modify the judgment or order being
appealed;
(C) Remand the case for further proceedings, with instructions
to the mayor, police court or municipal court;
(D) Finally dispose of the action by entering judgment on
appeal; or
(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 circuit court finds that the proceedings below
were subject to error to the extent that the defendant was
effectively denied a jury trial, the circuit court may, upon motion
of the defendant, 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.
(g) In the case of an appeal of a mayoral, police court or
municipal court proceeding tried without a jury, the defendant
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.
(h) 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
mayor, police court or municipal court lacked jurisdiction.
(i) The designation in this section of a mayor, acting as
police or municipal court judge, or of police court or municipal
courts as "courts of limited record" shall not be construed to give
standing or eligibility to mayors, police court or municipal court
judges to participate or be included in the retirement system for
judges of courts of record established under the provisions of
article nine, chapter fifty-one of this code.