(a)Revocation of probation or alternatives sentencing. –
(1)Preliminary hearing. – Whenever a person is held in custody on the ground that he or she has violated a condition of probation, the person shall be afforded a prompt hearing before any judge or magistrate who has been authorized by law to conduct preliminary hearings, in order to determine whether there is probable cause to hold the person for a revocation hearing. The person shall be given:
(A) Notice of the preliminary hearing and its purpose and of the alleged violation of probation; (B) An opportunity to appear at the hearing and present evidence in his or her own behalf; (C) Upon request, the opportunity to question adverse witnesses unless, for good cause, the judge or magistrate decides that justice does not require the appearance of the witness; and (D) Notice of his or her right to be represented by counsel. The proceedings shall be recorded stenographically or by an electronic recording device. If probable cause is found to exist, the person shall be held for a revocation hearing. The person may be released pursuant to Rule 46(c) pending the revocation hearing. If probable cause is not found to exist, the proceedings shall be dismissed. (2)Revocation hearing. – The revocation hearing, unless waived by the person, shall be held within a reasonable time and, unless otherwise prescribed by this rule, pursuant to the procedure prescribed in Chapter 62, Article 12, Section 10, of the West Virginia Code of 1931, as amended. The person shall be given:
(A) Written notice of the alleged violation of probation; (B) Disclosure of the evidence against him or her; (C) An opportunity to appear and to present evidence in his or her own behalf; (D) The opportunity to question adverse witnesses; and (E) Notice of his or her right to be represented by counsel, and, in the event he or she is indigent, of his or her right to appointed counsel. (b)Modification of probation. – A hearing and assistance of counsel are required before the terms or conditions of probation can be modified, unless the relief granted to the probationer upon his or her request or upon the court’s own motion is favorable to the probationer, and the attorney for the state, after having been given notice of the proposed relief and a reasonable opportunity to object, has not objected. An extension of the term of probation is not favorable to the probationer for the purposes of this rule. (c)Production of Statements. –
(1)In general. – Rule 26.2(a)-(d) and (f) applies at any hearing under this rule. (2)Sanctions for failure to produce statement. – If a party elects not to comply with an order under Rule 26.2(a) to deliver a statement to the moving party, the court may not consider the testimony of a witness whose statement is withheld.
W.Va. R. Crim. P. 32.1
Effective October 1, 1981; amended effective September 1, 1995.
