Legal Process FAQs

What is a public defender?

A Public Defender is a licensed attorney who is employed by one of the 18 Public Defender Corporations to represent individuals charged with a crime who also meet the financial standards set by the state to have a lawyer appointed to represent them.

Are there other court appointed attorneys besides public defenders? or What is the difference between a court appointed panel attorney and a public defender?

Yes, a court appointed lawyer is a lawyer that has their own law practice or is part of a law firm.

Will I have to pay for my court appointed attorney?

That depends on what jurisdiction you face charges in. Currently in a small group of jurisdictions, the trial court judges make it part of an individual’s sentence to pay the cost of their court appointed counsel.

How do I apply for a public defender or court appointed attorney?

The process to apply for a Public Defender differs from jurisdiction to jurisdiction. Individuals should be asked during their arraignment if they wish to have an attorney appointed to represent them or if they wish to hire an attorney. Once an individual indicates they are requesting an appointed attorney, the process that must be followed should be fully explained.

When will I find out if I am eligible for court-appointed counsel? What if I am not eligible for court-appointed counsel?

When you are first appearing before the magistrate or if you are taken immediately to the jail, you should ask for, and receive, an affidavit establishing your eligibility for appointed counsel. The circuit court or the public defender’s office will review your eligibility and, if eligible, you will be appointed a counsel. If you are not eligible for appointment of counsel, you will need to retain counsel at your own cost. However, you can appeal the denial of your eligibility by writing a letter to the judge presiding over your case. Notably, Public Defender Services has no role in the appointment of counsel as this is done at the circuit court level.

Who are the court officials in each county?

You can find court information by countyon the West Virginia Judiciary website here.

English is not my/my loved one’s first language, are there translators available?

Translators are available. The attorney assigned to your case would move the court for an appointment of a translator and the attorney would find a translator. Public Defender Services will pay the expenses of such a translator.

Why am I being arrested?

You have every right to ask the arresting officer what you are being arrested for. They will generally tell you at least the charge and probably the incident in question. However, do not argue your case or confess, especially on the officer’s body cam or if they have a camera in the cruiser.

Should I speak to the police?

If you are being arrested, you should only speak to police to invoke your Constitutional right to remain silent and to an attorney. Please be polite but firm. They or anyone else who reads the police report or watches the video will notice.

What should I avoid doing?

Do not argue your case or resist arrest. That could lead to more charges like disorderly conduct or obstruction. When police read you your rights and tell you that anything that you say can and will be used against you in a Court of law? Believe it.

When will I go to Court?

Usually within a day of your arrest. Most cases involve an initial appearance before a Magistrate, but it is usually by video from the jail. Please listen carefully if it is by video, and please do not hesitate to ask questions if you can’t hear or don’t understand. They will assume that you do. Sometimes the police will bring you directly to the Magistrate Court instead of taking you to jail. Please do not do anything that may cause the Magistrate to give you a high bond. Occasionally, the prosecutor bypasses filing a case in Magistrate Court and directly indicts someone in front of the grand jury. In that scenario, you will be brought before a Circuit Judge for arraignment within a few days.

What happens at an initial appearance?

You will have a bond set, both the amount and type. The bond depends on the seriousness of the charge/s and any prior criminal record that you may have. In the best case scenario, you will get a personal recognizance bond, meaning that you do not have to post any money to get released from jail. You also will be asked if you will hire an attorney or want to submit an affidavit requesting Court appointed counsel. Please fill that affidavit out quickly and completely. You may also be given the time and date of your next Court hearing.

When will I hear from my attorney?

Hopefully before the first hearing. Ideally within a week. There is a process for Court appointed counsel. The Magistrate Court submits the eligibility affidavit, once they get it, to the Circuit Judge. Sometimes a Public Defender Corporation will review it first. The Circuit Judge has to decide who if anyone will be appointed, and the Circuit Clerk must notify that attorney.

How do I get a pretrial diversion?

Mention it to your attorney, if they haven’t already thought of it. It’s more likely that you will get it when you are a first time offender, have a less serious charge, have a job, don’t have a bad attitude, and have a relatively sympathetic prosecutor and police officer and/or alleged victim telling the prosecutor what they think.

When should I do if I get a pretrial diversion?

UObey the law, appear at any Court hearings that review your compliance, and wherever else you may be asked to do. Do not hesitate to contact your attorney if you have any questions, and do not neglect to call them back. If successful, you likely will not have a conviction on your record at the end and can later seek to expunge/seal the charge from your record like it never happened.

Should I tell my lawyer the truth, even if I may be guilty?

Your lawyer is the person that stands between you and the prison or jail time and fines associated with the charges that you face. Clients should provide full and honest answers to all questions the lawyer determines relevant to developing and providing a full defense.

Will my case go to trial?

There are many considerations involved in the client’s decision of whether to take a case to trial. It is the attorney’s job to familiarize themselves with the case by reviewing the state’s evidence and conducting any necessary investigation in the client’s case. The attorney is also obligated to inform their client of all plea offers made by the state. It is the client who makes the ultimate decision of how their case will be resolved.

I received my letter with my court date and I cannot make it on that date. What should I do?

You should try to rearrange your schedule so that you can make it to court on the scheduled date. If that is not possible, you should immediately contact your lawyer to request a continuance.

What happens if I don’t show up to a scheduled hearing?

In most instances, a warrant for your arrest will be issued when you fail to show up for a scheduled hearing. The court can also issue a bond forfeiture which means that any bond that has been posted is lost, increase bond or set a bond in a case where there was originally no bond set.

Will I have to testify at trial?

It is the client’s decision whether to testify at trial. The attorney should provide the client with the pros and cons of testifying. If the client chooses to testify, the attorney should ensure that the client is adequately prepared.

Can a defendant’s family come to court?

Yes, all criminal trials are open to the public. There are very limited circumstances where portions of a trial may be closed to the public. However, it is never a good idea to bring children to court.

How should I dress for court?

You should plan on appearing in business casual (dress pants and a dress shirt) unless advised to wear a suit by your lawyer. If you are unsure about appropriate clothing for court, you should discuss this with your lawyer.

How can I review what services (hours + work product) were provided to me by my attorney?

If you want to review the invoice submitted by the attorney to Public Defender Services for the legal services provided to you, you need only to write to Public Defender Services and request a copy of the invoice. Public Defender Services will provide the copy without charge. You do not need to file a Freedom of Information Act request.

What should I do to prepare for sentencing?

Remember that every case is unique and there are numerous avenues you and your lawyer can take to limit your exposure to incarceration. Ask your lawyer well in advance what you can do to assist in gathering necessary materials for sentencing. You may need to provide names of friends, community members, and family members that would be willing to speak on your behalf or write a letter of support. Or your lawyer may ask that you gather school records, medical records or other types of records that you can obtain. If you suffer from an addiction or mental illness that is the underlying cause of the criminal charges, you could be asked to sign up and begin attending classes that will show the sentencing court that you are serious about obtaining the necessary help to get your life back on track. You can find more information and a checklist on our sentencing brochure found here.

What is Rule 35?

Rule 35(a) Correct an illegal sentence - An individual that discovers they were given an illegal sentence may make a request for a court to correct their sentence at any time.

Rule 35(b) reduction of sentence - Within 120 days after sentencing has occurred, your lawyer can request that the sentencing judge reconsider your sentence. You can ask for a reduction in sentence or an alternative form of sentence. The court can reconsider a sentence without motion from the individual.

When can I tell the judge my side of the story?

Every individual has an opportunity to speak at sentencing. It is a good idea to discuss what you plan to say in court with your lawyer well in advance of your sentencing date.

Can I contact my attorney after I have been sentenced/my case is closed? What legal support is available to me after conviction?

You should ask your trial attorney this question before the resolution of the case so that your expectations are set. In many instances, the appointment of the attorney to represent you ends upon conviction by order of the court, although it may be extended for the period allowing reconsideration of your sentence under Rule 35 of the Rules of Criminal Procedure. If you wish to appeal your conviction or if you wish to file a petition for habeas corpus relief, you may have to prepare the documents on your own and then request appointment of counsel to assist you. You should consult with your trial counsel about whether the trial counsel will file the notice of appeal and, if not, you should ask for the forms and the time period within which you will have to file it on your own.

What is the difference between supervised release and parole?

Parole is part of the original sentence imposed upon your conviction. Revocation of parole means serving the remaining portion of your sentence. Parole does not extend beyond the period of the original sentence. Supervised release is a condition imposed once you have discharged the original sentence. Violation of supervised release can result in further imprisonment for a term up to the length of the term of supervised release, even though you may have discharged the statutory sentence for the charge.

How does the Parole Board make the decision to grant or deny parole?

The Parole Board in considering an inmate for parole takes in consideration the circumstances of the crime, his prior convictions, his institutional conduct, his participation in the institutional programming, whether or not the inmate has been successful previously on parole, probation, home confinement and bond, the sentiment of the community and the official sentiment, the demeanor of the inmate during the interview, and the results of any physical, mental or psychiatric examinations and if the inmate has a solid aftercare plan and/or plans for future employment. The Parole Board will consider the positive and the negative factors in all areas and will not confine its determination to any particular area to the exclusion of the others.

How can I help an inmate get paroled?

An individual can assist an inmate is getting paroled by attending hearings, providing positive community sentiment, assisting an inmate in lining up employment, follow-up treatment and assisting him in providing to the Parole Board documentation of his follow-up plans.

For more information on parole, please visit the Parole Board's website.

When can I file an appeal? What are situations in which appeals can be filed?

A notice of appeal must be filed in the Supreme Court of Appeals of West Virginia 30 days after a sentencing order has been filed. Typically, appeals are filed in cases that go to trial. There are limited issues that can be appealed in cases resolved by way of a plea. The Appellate Division does not accept cases that were resolved by a plea.

When can a habeas petition be filed?

Habeas corpus petitions are filed after an appeal has been processed or waived by the client. Habeas Corpus Petitions are civil cases that are filed in a circuit court. The moving party is alleging that they are being held illegally. In order to file a Habeas Corpus Petition, the individual must be able to allege a constitutional violation occurred in their case that resulted in their wrongful conviction.

Legal Process FAQs

Gene​ral

​ Arrest

Initial Appearance & Pretrial Diversion​

Trial

Sentencin​g

Prisons & Corrections

Supe​rvision​

Appeals

Habeas Corpus

The Stages of a West Virginia Criminal Case