(a)Pleadings and motions. – Pleadings in criminal proceedings shall be the indictment and information, and the pleas of not guilty, guilty and nolo contendere. All other pleas, and demurrers and motions to quash are abolished, and defenses and objections raised before trial which heretofore could have been raised by one or more of them shall be raised only by motion to dismiss or to grant appropriate relief, as provided in these rules. (b)Pretrial motions. – Any defense, objection or request which is capable of determination without the trial of the general issue may be raised before trial by motion. Motions may be written or oral at the discretion of the judge. The following must be raised prior to trial:
(1) Defenses and objections based on defects in the institution of the prosecution; or (2) Defenses and objections based on defects in the indictment or information (other than that it fails to show jurisdiction in the court or to charge an offense which objections shall be noticed by the court at any time during the pendency of the proceedings); or (3) Motions to suppress evidence unless the grounds are not known to the defendant prior to trial; or (4) Requests for discovery under Rule 16 or requests for bill of particulars under Rule 7(f); or (5) Requests for a severance of charges or defendants under Rule 14. (c)Motion date. – Unless otherwise provided by local rule, the court may, at the time of the arraignment or as soon thereafter as practicable, set a time for the making of pretrial motions or requests and, if required, a later date of hearing. (d)Notice by the state of the intention to use evidence. –
(1)At the discretion of the state. – At the arraignment or as soon thereafter as is practicable, the state may give notice to the defendant of its intention to use specified evidence at trial in order to afford the defendant an opportunity to raise objections to such evidence prior to trial under subdivision (b)(3) of this rule. (2)At the request of the defendant. – At the arraignment or as soon thereafter as is practicable, the defendant may, in order to afford an opportunity to move to suppress evidence under subdivision (b)(3) of this rule, request notice of the state’s intention to use (in its evidence in chief at trial) any evidence which the defendant may be entitled to discover under Rule 16 subject to any relevant limitations prescribed in Rule 16. (e)Ruling on motion. – A motion made before trial shall be determined before trial unless the court, for good cause, orders that it be deferred for determination at the trial of the general issue or until after the verdict. Where factual issues are involved in determining a motion, the court shall state its essential findings on the record. (f)Effect of failure to raise defenses or objections. – Failure by a party to raise defenses or objections or to make requests which must be made prior to trial, at the time set by the court pursuant to subdivision (c), or prior to any extension thereof made by the court, may constitute waiver thereof, but the court for cause shown should grant relief from the waiver. (g)Records. – A verbatim record shall be made of all proceedings at the hearing, including such findings of fact and conclusions of law as are made orally. (h)Effect of determination. – If the court grants a motion based on a defect in the institution of the prosecution or in the indictment or information, it may also order that the defendant be continued in custody or that bail be continued for a specified time pending the filing of a new indictment or information or appellate review. Nothing in this rule shall be deemed to affect the provisions of any West Virginia statute relating to periods of limitations. (i)Production of statements at suppression hearing. – Except as herein provided, Rule 26.2 shall apply at a hearing on a motion to suppress evidence under subdivision (b)(3) of this rule. For purposes of this subdivision, a law enforcement officer shall be deemed a state witness.
W.Va. R. Crim. P. 12
Effective October 1, 1981; amended effective February 1, 1985;September 1, 1995.
