Senate Bill No. 18
(By Senator Kessler)
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[Introduced January 12, 2000; referred to the Committee
on the Judiciary.]
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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
provisions for appeal by the state in criminal proceedings.
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. 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 of a count;
(2)(A) A pretrial order preventing the prosecution from
obtaining evidence;
(B) An order granting a motion for suppression or exclusion
of evidence;
(C) An order granting a motion limiting the use of evidence;
or
(D) An order requiring the return of seized property, made
before the defendant has been put in jeopardy and before the
verdict or finding on an indictment or information;
(3) An adverse pretrial ruling on a substantial question of
law pursuant to the provisions of section two, article five of
this chapter;
(4) An order granting a new trial;
(5) An order arresting judgment; or
(6) The imposition of an unlawful sentence. As used in this
subdivision, "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 the defendant was
convicted and appeals from the judgment.
(c) An appeal pursuant to subdivision (2), subsection (a) 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 material fact and not merely
cumulative to the proceedings. As used in this section,
"substantial proof of a material fact" means evidence which is
highly probative of a fact relevant to the resolution of the case.
Interlocutory appeals filed pursuant to subdivision (2),
subsection (a) of this section 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
subdivision (2), subsection (a) of this section.
(d) If the state decides to appeal any ruling described in
subsection (a) of this section, a notice of intent to appeal shall be filed with the clerk of the court in which the ruling was made
within ten days of the ruling. The order reflecting the 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 subsection (a) of this section.
(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, are 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, the defendant is 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, the defendant, 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.