                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


State of West Virginia,                                                            FILED
Plaintiff Below, Respondent
                                                                                June 16, 2017
                                                                                RORY L. PERRY II, CLERK
vs) No. 16-0163 (Jefferson County 15-M-AP-7)                                  SUPREME COURT OF APPEALS
                                                                                  OF WEST VIRGINIA

Todd Kidwell,

Defendant Below, Petitioner


                              MEMORANDUM DECISION
        Petitioner 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.

       This 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.

        In 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.

        On 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.1

       1
         The parties agree that petitioner’s motion was filed on September 21, 2015. However,
the circuit court later found that petitioner filed this motion on October 13, 2015. To explain this

                                                                                   (continued . . . )

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       On 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.

        On 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.2 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 appeals.

        “This 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 considered.


        On 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)

conflict, petitioner argues that the circuit court misapplied the date of entry of the magistrate
court’s scheduling order as the date petitioner filed his motion.
       2
        The parties dispute the filing date of the appeal to circuit court (whether it was filed on
December 9 or 10, 2015). We find the dispute irrelevant to the issues on appeal. Neither date
would alter the Court’s analysis of whether the filing date fell within the applicable timeframe
because both dates fall within the timeframe at issue. The record on appeal does not confirm or
deny the correct date of that filing.




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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.”

        In 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.

         As 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 criminal proceedings.

        Here, 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.3 As such, we
find that the circuit court erred in denying petitioner’s appeal as untimely.

       For the foregoing reasons, the circuit court’s January 20, 2016, order is hereby reversed
and the matter remanded for further proceedings consistent with this decision.

       3
         We note that to the extent there is any conflict between the procedures set forth in West
Virginia Code § 50-5-13(a) and Rule 20.1, the procedure set forth in Rule 20.1 controls. See
State v. Davis, 178 W.Va. 87, 90, 357 S.E.2d 769, 772 (1987) (holding that “rules promulgated
by this Court have the force and effect of law and will supersede procedural statutes that conflict
with them”), overruled on other grounds, State ex rel. R.L. v. Bedell, 192 W.Va. 435, 452 S.E.2d
893 (1994).



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                                        Reversed and remanded.

ISSUED: June 16, 2017

CONCURRED IN BY:

Chief Justice Allen H. Loughry II
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Elizabeth D. Walker




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