There seems to be a lot of confusion about the right to a speedy trial in West Virginia. Let me help clear it up. Whether you are charged with a misdemeanor or a felony, you are entitled to a speedy trial. Actually, to an extent, you have a constitutional right to a speedy trial. Generally, the constitution kicks in, with exceptions, at the one year mark. Though, by statute in West Virginia, you are supposed to get a trial within 120 days unless you waive that right.
Essentially, your trial may be postponed, even without your waiver, beyond the 120 mark for “good cause,” which most times are merely the Courts’ scheduling difficulties. This is generally known as the “one term rule,” since one “term of court” is generally 120 days. A “term of court” is generally, as it applies to felonies pending in Circuit Court, a sitting of the grand jury and the subsequent period of hearings, motions, etc., which take place prior to the next sitting of the grand jury. Generally the Circuit Courts have three “terms of court.” Other types of “good cause” could arise. Indeed, it would probably be a rare day that you get a dismissal based on speedy trial at the 120 day/ one term mark.
The “one term rule” is a creature primarily of legislative enactment. It is easily circumvented, though it is a good target for courts to shoot for in providing a speedy trial to a defendant. On the other hand, the “three term rule”/ one year rule, says that under pretty much no circumstances should a defendant, who has not waived this right, not be brought to trial within one year, or three terms of court. This rule derives its’ authority from the West Virginia Constitution – or rather the West Virginia Supreme Court’s interpretation of the speedy trial guarantees of the West Virginia Constitution.
There are a few exceptions: insanity of the defendant, some behavior on behalf of the defendant that keeps witnesses away or the trial from logistically taking place, situations where a jury has previously sat and was unable to come to a decision (“hung”), or where the Defendant filed a motion to continue which was granted by the Court. Thus, realize there may be implications to filing, or joining in a motion to continue. This is one of those pitfalls that can catch an inexperienced criminal defense lawyer.
And it is important to note that these speedy trial guarantees do not just apply in Circuit Court. They also apply in Magistrate Court in misdemeanor cases.
– John H. Bryan, West Virginia Attorney.
If I told you I have had 5 of 6 charges dismissed for the three term rule in West Virginia you wouldn’t believe me. But I can proof. I have one more charge pending. It now should be gone after a writ of prohibition is herd on the 18th of may 2010. The Magistrate seems to think that because the DA refiled one charge the the clock stared running again. Oh I forgot to tell you that this was two different arrests three charges each. The First three had been dismissed once before for no probable cause. And the Officer went judge shopping and filed a new complaint with a different Magistrate. So at this moment I have had 9 dismissels for 6 charges. See what happens went you make a cop mad.
My case has been ongoing for three years now. The trial keeps being continued and a law judge who is a relative told me to talk to my lawyer about this rule. The problem is, I waived my right to a speedy trial the first time it was scheduled for trail. My law judge relative says that it doesn’t matter, but according to what I can find, it does matter. Does anyone know for sure?
Someone I know got arrested last year January 15 an that date is coming up in new year an has yet to be charged with anything an every time we went to court it was pushed further due to lack of evidence even his trial date went to court an they pushed it back. That person had felonies even after a year can they still charge him if they have yet to give any charges?