What to Expect When You've Been Charged with a Felony in West Virginia

West Virginia Code Section 61-11-1 defines a felony as a crime punishable by incarceration in the penitentiary. Felonies range from relatively minor crimes, such as Third Offense Shoplifting, to the most serious crimes, such as First Degree Murder. If you have been charged with a felony, it is critical that you hire an experienced and skilled criminal defense attorney to help guide you through the process. Your life and your freedom may well depend on it.

In West Virginia, felony cases usually begin with a law enforcement officer filing a criminal complaint in Magistrate Court. From there, the defendant is brought before a magistrate, where the charges are read to the defendant and a bond amount is set. If the person is found by the Court to be indigent, an attorney is appointed to represent the defendant. Otherwise, the defendant can either represent him/herself or hire an attorney. In my experience, a person should never, ever try to represent him/herself in a felony case.

The case then proceeds to a preliminary hearing. This hearing must be held within twenty days if the defendant is able to make bond, and within ten days if the defendant is incarcerated. At the preliminary hearing, the State has the burden of proving there is probable cause to believe two things: 1) that a crime was committed and 2)that the defendant committed it. If the State fails to meet its burden, the case is dismissed (although, as we will see later, it can be refiled). Preliminary hearings are often waived in exchange for something from the State, such as a bond reduction.

If the magistrate finds probable cause at the preliminary hearing, the case is bound over to Circuit Court, where it will remain until it is resolved. While a case is bound over, the defendant remains free (but subject to bond conditions) if they were able to post bond, or remains incarcerated if they were not. During this time, bond reduction motions can be made for people who are not able to make bond.

A case remains in bound-over status until the case is dismissed (which is rare) or an indictment is returned by a grand jury. One grand jury is usually called every three to four months, although sometimes they are called more often. The meeting of the grand jury is where prosecutors present the bound-over case to a group of fifteen to sixteen residents of the county where the charges were brought. If at least twelve of them believe there is enough evidence for the case to proceed to trial, the grand jury issues an indictment against the defendant. The indictment is the formal document charging the defendant with a crime in Circuit Court. The indictment removes the case from bound-over status and places it on the Circuit Court’s docket. A case cannot go past bound-over status unless an indictment is issued.

In some cases, charges are not filed in Magistrate Court prior to the meeting of the grand jury. This is known as a direct indictment, and it skips many of the steps mentioned above: the person is not charged in Magistrate Court, there is no preliminary hearing, and the case never enters bound-over status. The case is simply presented to the grand jury with no prior filings. Additionally, even if a person’s case is dismissed at the preliminary hearing, it can still be presented to the grand jury, and the person can still be indicted.

Once a person is indicted, the court requires the defendant to report for an arraignment. At arraignment, the judge will ask the defendant if they understand the nature of the charges against them; if they understand the possible penalties for those charges; and whether they plead Guilty or Not Guilty. A trial date is then set. The issue of bond can also be addressed at arraignment.

Before the trial date, the State will provide the defendant with discovery - that is, copies of all the evidence the State intends to present at trial. The defendant and their lawyer will have an opportunity to review discovery, as well as conduct their own investigation into the allegations, prior to trial.

Also prior to trial, the defendant’s attorney may present pre-trial motions. These are document’s in which the defendant’s lawyer can ask the Court to do a variety of things, such as prohibit certain witnesses from testifying at trial, exclude illegally obtained evidence, or allow the testimony of expert witnesses.

Often, the State will make the defendant a plea offer prior to trial. A plea offer is a proposed agreement in which the defendant agrees to plead guilty to one or more charges in exchange for something from the State, such as reducing a charge from a felony to a misdemeanor or guaranteeing an alternative sentence.

There are two kinds of plea agreements: binding and non-binding. In a non-binding plea agreement, the State agrees to make a recommendation to the judge as to how the case should be resolved, but the judge is free to use his/her own judgment in giving the sentence after the defendant’s guilty plea is entered. In a binding plea agreement, the State guarantees that the defendant will get a certain sentence (e.g. probation, home confinement, or a minimum prison term), and the judge must let the defendant know if he will accept the agreement before the guilty plea is entered. If the judge does accept the guilty plea, then the judge must sentence the defendant as outlined in the binding plea agreement.

If discovery is complete, all pretrial motions have been decided, and the defendant rejects all plea offers, the case proceeds to a trial by jury. The trial will take place in front of a twelve-person jury. At trial, the defendant can only be found guilty if the State proves the defendant’s guilt beyond a reasonable doubt - the highest standard in all of American law. If all twelve jurors find the defendant guilty, a guilty verdict will be returned; if all twelve jurors find the defendant not guilty, a verdict of not guilty will be returned. If the jurors cannot reach a decision, a mistrial will be declared, and the case may have to be tried a second time to a different jury.

If the defendant is found not guilty, the case is over, and the defendant is free.

If the defendant pleads guilty or is found guilty by a jury, the Court will proceed to sentencing approximately sixty days later. During this sixty-day period, the probation department will put together a document discussing the person’s background and criminal history. This document is called the pre-sentence investigation, and it is used to aid the judge in deciding which sentence to give the defendant.

If you have been charged with a felony, don’t take the risk of trying to represent yourself or hiring an inexperienced, timid attorney. You need an advocate who is well-versed in criminal law and who will give you an honest and accurate assessment of how to proceed with your case. You need an advocate who is not afraid to stand up to the State and who is willing take your case all the way to trial.

Contact DeVore Law Office, PLLC at (304) 699-0107 to speak to an attorney who will give you a dedicated, aggressive defense in your criminal case.