TABLE OF CONTENTS

1. Caption
2. Introduction
3. Statement of Facts
4. Grounds for Dismissal
5. Legal Argument
6. Prayer for Relief
7. Certificate of Service

IN THE CIRCUIT COURT OF [________________________________] COUNTY, WEST VIRGINIA

DEFENDANT'S MOTION TO DISMISS

I. INTRODUCTION

Defendant, [DEFENDANT FULL LEGAL NAME], by and through counsel, [ATTORNEY NAME], hereby moves this Court for an order dismissing the ☐ Indictment / ☐ Information filed in the above-captioned matter pursuant to W.Va.R.Crim.P. 12, W.Va.R.Crim.P. 48, and/or W.Va. Code § 62-3-21.

II. STATEMENT OF FACTS

On or about [__/__/____], Defendant was charged with the following offense(s):

[________________________________]

III. GROUNDS FOR DISMISSAL

☐ A. Insufficient Evidence / Lack of Probable Cause

☐ B. Three-Term Rule / Speedy Trial (W.Va. Code § 62-3-21)
Three regular terms of court have passed after the indictment was found without the Defendant being brought to trial.

☐ C. One-Term Rule (W.Va. Code § 62-3-1)
The Defendant has asserted the right to trial within the term of indictment and has not been tried.

☐ D. W.Va.R.Crim.P. 48(b) — Unnecessary Delay
There has been unnecessary delay of more than one year in presenting the charge to a grand jury or filing an information.

☐ E. Statute of Limitations (W.Va. Code § 61-11-9)
The prosecution was commenced beyond the applicable statute of limitations.

☐ F. Double Jeopardy (U.S. Const. Amend. V; W.Va. Const. Art. III, § 5)

☐ G. Due Process Violation (U.S. Const. Amend. XIV; W.Va. Const. Art. III, § 14)

☐ H. Defective Indictment (W.Va.R.Crim.P. 12(b))

☐ I. Prosecutorial Misconduct

IV. LEGAL ARGUMENT

A. Three-Term Rule

Under W.Va. Code § 62-3-21, a person charged by indictment who is not brought to trial within three regular terms of court shall be "forever discharged." The initial term of indictment is not counted. State ex rel. Farley v. Kramer, 153 W.Va. 159, 169 S.E.2d 106 (1969). A demand for speedy trial is not required. Ex parte Chalfant, 81 W.Va. 93, 93 S.E. 1032 (1917).

[________________________________]

B. W.Va.R.Crim.P. 48(b)

Under Rule 48(b), the court shall dismiss without prejudice if there is unnecessary delay of more than one year in presenting a charge to a grand jury or filing an information. The court may also dismiss for unnecessary delay in bringing a defendant to trial.

[________________________________]

C. Statute of Limitations

Under W.Va. Code § 61-11-9, felonies generally have no statute of limitations. Misdemeanors must be prosecuted within 1 year (§ 61-11-9).

[________________________________]

D. Additional Grounds

[________________________________]

V. PRAYER FOR RELIEF

WHEREFORE, Defendant respectfully requests that this Court:

1. Discharge Defendant forever pursuant to W.Va. Code § 62-3-21;
2. Alternatively, dismiss all charges pursuant to W.Va.R.Crim.P. 48;
3. Order such other and further relief as this Court deems just and proper.

Dated: [__/__/____]

Respectfully submitted,

________________________________________
[ATTORNEY NAME], WVSB No. [________________________________]
[LAW FIRM NAME]
[ADDRESS]
[CITY], West Virginia [ZIP CODE]
Telephone: [________________________________]
Email: [________________________________]

Attorney for Defendant [DEFENDANT FULL LEGAL NAME]

VI. CERTIFICATE OF SERVICE

I hereby certify that on [__/__/____], I served a true and correct copy of the foregoing on:

☐ Personal delivery
☐ U.S. Mail, first class, postage prepaid
☐ Electronic service via [________________________________]

Office of the Prosecuting Attorney
[________________________________] County
[ADDRESS]
[CITY], West Virginia [ZIP CODE]

Dated: [__/__/____]

________________________________________
[NAME OF DECLARANT]

WEST VIRGINIA-SPECIFIC NOTES

• W.Va. Code § 62-3-21 (Three-Term Rule): The defendant must be tried within 3 regular terms of court after indictment. Violation results in permanent discharge. The term of indictment is not counted.
• W.Va. Code § 62-3-1 (One-Term Rule): A defendant who asserts the right must be tried within the term of court in which the right is asserted, unless good cause exists for a continuance.
• W.Va. Code § 62-2-12 (Two-Term Rule): A person held in jail without indictment must be discharged if not indicted by the end of the second term of court.
• W.Va.R.Crim.P. 48(b): Mandatory dismissal without prejudice for one-year delay in presenting to grand jury or filing information.
• Statutes of Limitation: Most felonies have no statute of limitations; misdemeanors have a 1-year limitation.
• Terms of Court: The number and timing of court terms vary by county. Practitioners must determine the applicable term schedule for the county.

This template is provided by ezel.ai for informational purposes only. It does not constitute legal advice. Consult a licensed West Virginia attorney before use.