You are entitled to a “speedy trial” in West Virginia

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.