Todd Kidwell, by counsel James T. Kratovil, appeals the
Circuit Court of Jefferson County's January 20, 2016,
order denying his petition for appeal of a conviction and
sentence from the Magistrate Court of Jefferson County as
untimely filed. The State of West Virginia, by counsel
Brandon C.H. Sims, filed a response in support of the circuit
court's order and a supplemental appendix. Petitioner
filed a reply. On appeal, petitioner argues that the circuit
court erred in denying his appeal as untimely.
Court has considered the parties' briefs and the record
on appeal. The facts and legal arguments are adequately
presented, and the decisional process would not be
significantly aided by oral argument. Upon consideration of
the pertinent legal authority, the briefs, and the record
presented, this Court finds that the circuit court order
erred in denying petitioner's petition for appeal as
untimely. This case satisfies the "limited
circumstances" requirement of Rule 21(d) of the Rules of
Appellate Procedure and is appropriate for a memorandum
decision rather than an opinion.
March of 2015, petitioner was charged in magistrate court
with one count of domestic battery related to allegations
that he "head butted" his girlfriend causing
swelling on her eye, cheek, and forehead; that he spit on
her; that he forcibly held her in a "bear hug" for
several minutes causing redness on her arms, neck, and face;
that he "trapped" her in a bathroom; and that he
grabbed and pushed her.
September 17, 2015, the magistrate court held a bench trial.
At the conclusion of that trial, petitioner was found guilty
as charged. On that date, the magistrate court sentenced
petitioner to thirty days in jail; imposed a fine in the
amount of $200; and imposed court costs in the amount of
$165.25. On September 21, 2015, petitioner filed a motion for
a new trial. Petitioner's motion simply stated that he
"would represent that he was improperly convicted."
Petitioner did not cite any statute, rule, or case law in
support of his motion.
November 17, 2015, the magistrate court held a hearing on
petitioner's motion for a new trial. While there is no
transcript of the magistrate court hearing, respondent states
without dispute that the magistrate court orally denied the
motion at that hearing. By order entered on November 20,
2015, the magistrate court denied petitioner's motion for
a new trial.
December 9 or 10, 2015, petitioner filed an appeal with the
circuit court of the magistrate court's denial of his
motion for a new trial. By order entered on January 20, 2016,
the circuit court denied petitioner's appeal as untimely.
In that order, the circuit court made the following findings:
that petitioner was convicted and sentenced in magistrate
court on September 17, 2015; that petitioner requested a
motion for a new trial in magistrate court on October 13,
2015; that West Virginia Code § 50-5-13(a) requires an
appeal from magistrate court to be filed within twenty days
of a conviction; that the magistrate court denied
petitioner's motion for a new trial on November 20, 2015;
that under Rowan v. McKnight, 184 W.Va. 763, 403
S.E.2d 780 (1991), a motion for a new trial does not toll an
appeal period; and that Rule 33 of the West Virginia Rules of
Criminal Procedure provides that a motion for a new trial
must be filed within ten days of the verdict unless based on
newly discovered evidence. Based on these findings, the
circuit court concluded that petitioner (1) failed to file
his appeal within twenty days of his conviction, and (2)
failed to request a new trial within twenty days of his
conviction, but even if he had, a motion for a new trial
would not have tolled his twenty-day appeal period from the
date of conviction. It is from this order that petitioner
Court reviews the circuit court's final order and
ultimate disposition under an abuse of discretion standard.
We review challenges to findings of fact under a clearly
erroneous standard; conclusions of law are reviewed de
novo." Syllabus Point 4, Burgess v.
Porterfield, 196 W.Va. 178, 469 S.E.2d 114 (1996).
"Where the issue on an appeal from the circuit court is
clearly a question of law or involving an interpretation of a
statute, we apply a de novo standard of
review." Syllabus Point 1, Chrystal R.M. v. Charlie
A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995). With these
standards in mind, the parties' arguments will be
appeal, petitioner argues that the circuit court erred in
denying his appeal as untimely. Petitioner claims that he
timely filed his appeal to circuit court following the
magistrate court's denial of his motion for a new trial,
pursuant to Rules 20(a) and 20.1 (titled "Appeal to
Circuit Court") of the West Virginia Rules of Criminal
Procedure for Magistrate Courts. Rule 20(a) provides that
"[w]ithin 20 days after a verdict or a finding of
guilty, the defendant may file a motion requesting that the
judgment be set aside and a new trial held." Rule 20.1
provides, in relevant part, as follows "any person
convicted of a misdemeanor in a magistrate court may appeal
such conviction to the circuit court as a matter of right.
Notice of appeal shall be filed in magistrate court: . . .
(1) Within 20 days after the magistrate has denied a motion
for a new trial."
response to petitioner's argument, the State admits that
the circuit court's January 20, 2016, order incorrectly
found that petitioner's motion for a new trial was
untimely filed on September 21, 2015-four days after his
conviction. However, the State asserts that petitioner's
appeal was nonetheless untimely because his appeal period
began to run when the magistrate court orally denied his
motion on November 17, 2015-not when the written order was
entered on November 20, 2015. We note that the State provides
no legal authority to support its argument that a written
order reflecting a prior oral ruling is not appealable or
does not act to, at a minimum, renew the appeal period if
previously triggered. Based on our thorough review of the
issue, we find that the magistrate court's written order
reflecting its prior oral ruling denying petitioner's
motion for a new trial constitutes a final, appealable order
in this case. Therefore, we find that petitioner's time
period to file an appeal of the order denying his motion for
a new trial began to run on November 20, 2015.
relayed above, on appeal from the magistrate court, the
circuit court found that petitioner failed to timely appeal
his conviction within twenty days thereof. Having considered
the record, the parties' arguments, and the pertinent
legal authority, we find that the circuit court failed to
apply Rule 20.1 and was misguided in its reliance on
Rowan. In footnote 2 of Rowan, while
discussing "motions for reconsideration" and civil
procedure, this Court "caution[ed] attorneys that a
motion for reconsideration does not toll the time for
appeal." 184 W.Va. at 764 n.2, 403 S.E.2d at 781 n.2. We
find that our dictum in footnote 2 of Rowan has no
application to the instant case. Rowan was a civil
case regarding the application of res judicata under limited
facts. It did not set forth any holding on motions for new
trials and appeals from magistrate court to circuit court in
petitioner filed his appeal of the November 20, 2015, order
denying his motion for a new trial on December 9 or 10, 2015.
Because petitioner's appeal was filed within the
twenty-day appeal period provided by Rule 20.1(a)(3),
petitioner's appeal was timely filed. As such, we find
that the circuit court erred in denying petitioner's
appeal as untimely.
foregoing reasons, the circuit court's January 20, 2016,
order is hereby reversed and the matter remanded for further