H. B. 2371


(By Delegate Faircloth)

[Introduced January 17, 2003 ; referred to the

Committee on the Judiciary then Finance.]





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 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article five, chapter fifty-eight of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be repealed; and that a new section thirty of said article and said chapter be enacted in lieu thereof, to read as follows: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 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 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;
(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 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 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 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) 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 subsection (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.