H. B. 2442
(By Delegate Faircloth
[Introduced January 27, 1999; referred to the
Committee on the Judiciary.]
A BILL to repeal section thirty, article five, chapter
fifty-eight of the code of West Virginia, one thousand nine
hundred thirty-one, as amended; and to enact in lieu thereof
a new section thirty of said article and said chapter,
relating to provisions for appeal by the state in criminal
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as amended, be repealed; and that a new section thirty of said
article and said chapter be enacted in lieu thereof, to read as
ARTICLE 5. APPELLATE RELIEF IN SUPREME COURT OF APPEALS.
§58-5-30. Appeal by the state in criminal proceedings.
(a) An appeal may be taken by the state from any of the following:
(1) An order by the circuit court setting aside or
dismissing any case, indictment, information, warrant or criminal
complaint or any count or portion thereof;
(2) A pretrial order preventing the prosecution from
obtaining evidence or an order granting a motion for suppression
or exclusion of evidence, or an order granting a motion limiting
the use of evidence, or an order requiring the return of seized
property, not made after the defendant has been put in jeopardy
and property, not made after the defendant has been put in
jeopardy and before the verdict or finding on an indictment or
(3) An adverse pretrial ruling on a substantial question of
law pursuant to the provisions of section two, article five of
(4) An order granting a new trial;
(5) An order arresting judgment;
(6) The imposition of an unlawful sentence. As used in this
paragraph, "unlawful sentence" means the imposition of a sentence
not authorized by law or the imposition of a sentence based upon
an unlawful order of the court which strikes or otherwise
modifies the effect of an enhancement or prior conviction.
(b) A ruling adverse to the state on a question of law may
be cross-assigned as error on appeal, if defendant was convicted
and appeals from the judgment.
(c) An appeal pursuant to subsection (a)(2) of this section
may be taken only when the prosecuting attorney certifies 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 and not merely cumulative to
the proceedings. As used in this section, "substantial proof of
a fact material" means evidence which is highly probative of a
fact relevant to the resolution of the case. Interlocutory
appeals filed pursuant to subsection (a)(2) shall be given
priority if accepted for review by the supreme court of appeals.
The supreme court of appeals may, by rule of appellate procedure,
provide for an expedited procedure in interlocutory appeals
brought pursuant to subsection (a)(2) of this section.
(d) If the state decides to appeal any ruling described in
section (a) above, a notice of intent to appeal must be filed
with the clerk of the court in which the ruling was made within
ten days of the ruling. The order reflecting such ruling shall
be entered within ten days of the ruling. State appeals shall be
filed with the clerk of the circuit court having original
jurisdiction within thirty days of the entry of the order
reflecting the ruling described in section (a) above.
(e) All underlying proceedings shall be stayed and all
statutory speedy trial provisions, including the provisions of
sections one and twenty-one of article three, chapter sixty-two
of this code, shall be tolled once a notice of intent to appeal is filed by the state and during the pendency of the appeal.
(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) A defendant has full appellate rights to defend against
any petition for appeal initiated by the state, and he or she may
cross-assign error on orders or judgments appealed by the state.
NOTE: The purpose of this bill is to provide for appellate
relief for the state in criminal proceedings.
This section is completely rewritten, therefore,
strike-throughs and underscoring have been omitted.