§62-7-3. Stay of proceedings; removal to penitentiary after
reasonable time pending appeal; procedure for bail.
(a) Whenever a stay of proceedings has been granted pursuant
to section one or two of this article or any rule of court relating
to stays granted under those sections, and the court upon its own
motion or after notice and motion by the prosecuting attorney or
the defendant shall determine that it is no longer necessary to
retain the defendant at a place of confinement near the place of
trail in order to permit the defendant to assist in the preparation
of his or her appeal to the supreme court of appeals, then unless
the defendant shall have posted bail, the sentencing court may
vacate the order granting the stay or, in the case of the supreme
court of appeals, the supreme court of appeals may vacate its order
granting the stay upon the recommendation of the circuit court.
Upon the vacation of the order granting the stay, the defendant
shall be removed to the penitentiary pursuant to the provisions of
section seven of this article: Provided,
That the sentencing court
of the supreme court of appeals may order incarceration elsewhere
for other good cause. In the case of the removal of a defendant
from a place of confinement near the place of trial, if at any time
during the pendency of the petition for appeal or the appeal the
defendant shall post bail or the defendant or the defendant's
counsel shall have exhibited the defendant's readiness and ability
to post such bail, then the stay shall again be granted or the
supersedeas shall be reinstated and the defendant dealt with as
hereinafter provided in this section. If a defendant be confined
away from the place of trial under the provisions of this subsection, he may nonetheless be returned to a place of
confinement near the place of trial at any time his presence is
necessary to facilitate preparation for, or access to, proceedings
for an appeal.
(b) If a defendant is not released pending disposition of
appeal and is removed to the penitentiary or other place of
confinement in accordance with the provisions of subsection (a) of
this section, then upon the fixing of bail in a proper case, the
defendant may be admitted to bail as heretofore provided by law and
released from any incarceration in accordance with the terms and
conditions of such bail, by the warden of the state penitentiary or
other officer having lawful custody, upon the release order of the
clerk or judge of the court before whom such bail is to be given.
A release order shall be promptly issued by the clerk or judge
when the requirements for bail have been complied with or when the
defendant or the defendant's counsel has exhibited the defendant's
readiness and ability to comply with such requirements. Such
release order may be provisional in form indicating that proper
arrangements for bail have been made and could be completed upon
the personal appearance of the defendant before the clerk or judge.
In order to be admitted to bail following the execution by the
clerk or judge of the release order or provisional release order
the defendant shall be promptly brought before the court or clerk
by the officer having custody. If the circumstances under which
bail was fixed have changed so that bail is no longer appropriate,
bail may be denied: Provided, That nothing in this subsection is
intended to alter the conditions under which an individual may be admitted to bail under other provisions of law.
Note: WV Code updated with legislation passed through the 2013 1st Special Session
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