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West Virginia

State Resource Guide

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The Post-Conviction Process

Click on the underlined links to view more information. 

To help you better use this state-by-state resource, here is a glossary of terms used throughout this site.

Post-Sentencing Review

Direct Appeal

State Post-Conviction Motions

Federal Habeas Corpus

Early Release Programs

Clemency

Victims have rights throughout this whole process. Click here to learn more.

A criminal case may not go through each stage included in this visual representation, or these stages may occur in a different order than they appear in this graphic. Additionally, some cases may go through these stages several times. Each case is unique, and this chart is intended only as a visual aid to help victims and survivors understand the post-sentencing process.

Post-Sentencing Review

After an individual accused of a crime has been convicted and sentenced, they may file motions in the trial court to challenge their conviction or sentence.
  • These can include motions to withdraw a plea, to be resentenced, or for a new trial based on new evidence or problems with how the case has been handled. In certain situations, the prosecution may also file a motion to modify the person’s sentence.
  • Victims can receive information about post-trial motions from the Prosecuting Attorney’s Office in the county where the crime was prosecuted.

Direct Appeal

After any post-sentencing motions are decided by the court (or if no post-sentencing motions are filed), an individual convicted of a crime may ask a higher court to review the trial court’s and jury’s decisions. This is called a “direct appeal.”
  • On appeal, the court does not admit new evidence or call witnesses but instead reviews what happened in the trial court. If the convicted person pursues an appeal, they may ask to be released while it is pending.
  • The Appellate Division of the West Virginia Attorney General (AG) represents the state on direct appeal from circuit court convictions. To receive direct appeal updates, victims can contact the Appellate Division of the AG by phone at 304-558-5830.

State Post-Conviction Motions

Post-conviction motions are requests to have the conviction or sentence reviewed that are filed after the direct appeal process has ended.
  • These motions can seek many outcomes, including invalidation of the conviction, shortening the amount of time the convicted person must spend in prison, or permission from the court for that individual to view or find additional information relevant to the case – such as new DNA testing.
  • The Appellate Division of the West Virginia Attorney General (AG) represents the State in state post-conviction proceedings. To receive updates on the state’s post-conviction process, victims can contact the Appellate Division of the AG by phone at 304-558-5830.

Federal Habeas Corpus

After seeking post-conviction relief in state court, a person convicted under West Virginia law may go to federal court in a process called “habeas corpus.”
  • Relief in federal habeas corpus is available only in specific and rare circumstances. Issues often raised in federal habeas cases include claims that the convicted person had an inept attorney, claims that police or prosecutors violated their rights, hid evidence, or committed other misconduct.
  • The Appellate Division of the West Virginia Attorney General represents the State in federal habeas corpus proceedings. To receive updates on the state’s post-conviction process, victims can contact the Appellate Division of the AG by phone at 304-558-5830.

Early Release Programs

These programs can include parole or earning time off a sentence for good behavior or illness.
  • If someone is sentenced to a term of imprisonment, they may be released from prison earlier than expected through several programs available in West Virginia, including parole, release due to a medical condition, and “good time credits” – which are reductions in a person’s sentence for good behavior in prison, completion of certain educational or vocational programs, or meritorious acts of service.
  • Victims can track the status of an incarcerated person via West Virginia Victim Notification Everyday (VINE). For notification, victims should register with the West Virginia Division of Corrections and Rehabilitation by calling 1-866-984-8463. For additional assistance, victims should contact the Victim Services unit of the West Virginia Division of Corrections and Rehabilitation at 304.558.2036, Ext. 24733. Victims must also register with the West Virginia Parole Board in writing if they wish to be notified about release.

Clemency

In rare cases, the governor may grant the convicted person relief from their sentence or conviction.
  • The governor can grant clemency to people convicted under West Virginia law. Clemency usually takes the form of a pardon (which forgives a conviction) or a commutation (which shortens a person’s sentence).
  • Victims should register with the West Virginia Parole Board in writing if they wish to be notified about clemency. Victims can call the Parole Board at 304-558-6366 for more information.

Victims Rights
Post-Conviction

In West Virginia, victims have the right to:
  • Notification of criminal justice proceedings*
  • Notification of the convicted person’s release, escape, or transfer to a less secure facility*
  • Notification of parole and clemency proceedings*
  • Be heard in parole hearings and medical release hearings
  • Notification of incarcerated individuals’ release, placement, or escape from custody*
  • Request restitution and apply for crime victim’s compensation
  • Prompt return of property when it is no longer needed as evidence

* All rights to notification require the victim to provide and update their information with the District Attorney, Attorney General, Department of Corrections, and/or the Board of Paroles and Pardons.

Compensation

  • Restitution is a court-ordered payment from the defendant to the victim to account for the victim’s economic loss. Apart from court-ordered restitution, the West Virginia Crime Victims Compensation Fund reimburses victims for expenses related to the crime, such as medical expenses, lost wages, and funeral and burial costs.
  • Victims may apply to the West Virginia Crime Victims Compensation Fund by calling 877-562-6878 (within W.Va. only) or (304) 347-4850 or contacting the county prosecuting attorney office where the crime was prosecuted. Applications must be filed within two years of the crime.
Click here to learn more about the post-conviction process and victims’ rights in West Virginia

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