IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
 

September 2015 Term 

No. 14-1162 

STATE OF WEST VIRGINIA,
 

Respondent Below, Petitioner,
 

v.
 

MEGAN DAVIS,
 

Petitioner Below, Respondent.
 

FILED
 

November 5, 2015
 

released at 3:00 p.m. 

RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

Appeal from the Circuit Court of Cabell County
 

The Honorable F. Jane Hustead, Judge
 

Civil Action No. 14-C-579
 

REVERSED
 

Submitted: September 23, 2015
 

Filed: November 5, 2015
 

Joe M. Fincham II, Esq. A. Courtenay Craig, Esq. 

Assistant Prosecuting Attorney Huntington, West Virginia 

Huntington, West Virginia Attorney for Respondent 

Attorney for Petitioner 

JUSTICE LOUGHRY delivered the Opinion of the Court. 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

SYLLABUS BY THE COURT
 

1. “A de novo standard of review applies to a circuit court’s decision to 

grant or deny a writ of mandamus.” Syl. Pt. 1, Harrison Cty. Comm’n v. Harrison Cty. 

Assessor, 222 W.Va. 25, 658 S.E.2d 555 (2008). 

2. “Where the issue on an appeal from the circuit court is clearlya question 

of law or involving an interpretation of a statute, we apply a de novo standard of review.” 

Syl. Pt. 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995). 

3. “Court rules are interpreted using the same principles and canons of 

construction that govern the interpretation of statutes.” Syl. Pt. 2, Casaccio v. Curtiss, 228 

W.Va. 156, 718 S.E.2d 506 (2011). 

4. “‘A preliminaryexamination conducted pursuant to Rule 5.1 of the West 

Virginia Rules of Criminal Procedure serves to determine whether there is probable cause 

to believe that an offense has been committed and that the defendant committed it; the 

purpose of such an examination is not to provide the defendant with discovery of the nature 

of the State’s case against the defendant, although discovery may be a by-product of the 

preliminary examination.’ Syl. pt. 1, Desper v. State, 173 W.Va. 494, 318 S.E.2d 437 

(1984).” Syl. Pt. 3, State v. Davis, 232 W.Va. 398, 752 S.E.2d 429 (2013). 

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5. “Where the State proceeds under W.Va. Code, 62-1-1, et seq., to arrest 

the accused for an offense which must be brought before the grand jury, the defendant is 

entitled to a preliminary hearing under W.Va. Code, 62-1-8 (1965). If, however, the State 

elects to indict him without a preliminary hearing or before one can be held, the preliminary 

hearing is not required.” Syl. Pt. 3, State ex rel. Rowe v. Ferguson, 165 W.Va. 183, 268 

S.E.3d 45 (1980). 

6. “Statutes which relate to the same subject matter should be read and 

applied together so that the Legislature’s intention can be gathered from the whole of the 

enactments.” Syl. Pt. 3, Smith v. State Workmen’s Comp. Comm’r, 159 W.Va. 108, 219 

S.E.2d 361 (1975). 

7. Where a criminal complaint initiated pursuant to West Virginia Code 

§ 62-1-1 (2014) has been dismissed, the right to a preliminary hearing arising under West 

Virginia Code § 62-1-8 (2014) no longer exists. 

8. “Most courts hold that as a general rule, a trial court should not grant 

a motion to dismiss criminal charges unless the dismissal is consonant with the public interest 

in the fair administration of justice.” Syl. Pt. 12, in part, Myers v. Frazier, 173 W.Va. 658, 

319 S.E.2d 782 (1984). 

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LOUGHRY, Justice: 

The State of West Virginia appeals from the October 23, 2014, order of the 

Circuit Court of Cabell County granting a petition for writ of mandamus filed by the 

respondent herein, Megan Davis. At issue in this mandamus case is a separate, criminal case 

against the respondent that was dismissed by Cabell County Magistrate Ron Baumgardner 

upon the State’s motion prior to holding a preliminary hearing.1 Because the State indicated 

that it might seek an indictment for the alleged criminal conduct, the circuit court ruled that 

the respondent is entitled to a preliminary hearing. After a careful review of this matter, we 

conclude that the respondent is not entitled to a preliminary hearing. Accordingly, we 

reverse. 

I. Factual and Procedural Background 

On August 4, 2014, a City of Huntington police officer filed a criminal 

complaint in magistrate court charging the respondent with conspiracyto deliver a controlled 

substance, which is a felony. The complaint alleged that she arranged for a person who was 

cooperating with law enforcement to sell sixteen grams of marijuana to a third party. The 

respondent was arrested and arraigned on August 5, 2014. Thereafter, her bail was reduced 

and, on August 15, 2014, she was released on a personal recognizance bond. On August 21, 

1

Although the parties’ briefs denominated the magistrate judge as the petitioner in this 

appeal, the State of West Virginia is the real party in interest. The style of this opinion has 

been modified accordingly. 

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2014, the respondent’s defense counsel suggested to the assistant prosecutor that the 

criminal charge was unsupportable because the respondent had been entrapped. Acting on 

this information, the assistant prosecutor directed the police to investigate the entrapment 

claim. 

The following day, August 22, 2014, the parties appeared in magistrate court 

for a preliminary hearing on the criminal charge. Before the preliminary hearing 

commenced, the assistant prosecutor filed a motion with the magistrate court seeking to 

dismiss the criminal complaint without prejudice. The prosecutor indicated that the case was 

to be dismissed “for direct,” which signaled that the State might, in the future, present the 

matter to the grand jury for possible indictment. The prosecutor asked for the dismissal 

because he did not believe he was in a position to proceed with the preliminary hearing, in 

part because the State had not yet completed its investigation concerning the respondent’s 

allegation of entrapment. Opposing the motion, the respondent offered to waive the 

preliminary hearing in exchange for an “open file policy,” allowing her access to the State’s 

file on the criminal charge. The State declined this offer. Over the respondent’s objection, 

the magistrate court granted the motion to dismiss the criminal complaint. As a result, no 

preliminary hearing was held. 

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Later that same day, although the criminal complaint had been dismissed, the 

respondent filed a petition for writ of mandamus asking the circuit court to require the 

magistrate “to hold a pre-indictment preliminary hearing for the [respondent] so that [s]he 

may be able to protect [her] rights[.]” The mandamus petition also sought a standing order 

requiring every magistrate in the county to ensure that the right to a preliminary hearing is 

observed in every criminal case. 

After briefing and oral argument on the mandamus petition, the circuit court 

ruled that the respondent was entitled to a preliminary hearing provided the hearing could be 

held prior to the return of an indictment against her. The circuit court reasoned that the State 

may move to dismiss a criminal charge “altogether,” but it has no right to seek the dismissal 

of a felony charge in order to directly present the matter to a grand jury, gain a tactical 

advantage over a defendant, or merely circumvent a defendant’s right to a preliminary 

hearing.2 A written Final Order reflecting the circuit court’s mandamus ruling was entered 

2

During the mandamus hearing, after the circuit court announced its ruling, the court 

and the parties discussed how to proceed. In light of the ruling, the State indicated that it 

would acquiesce to the respondent’s request for an open file policy, while the respondent 

agreed that she would waive the preliminary hearing and the criminal case could remain 

dismissed. Although these terms were incorporated into the circuit court’s Final Order, that 

order was immediately stayed, and the record is clear that the parties acquiesced only as a 

result of the circuit court’s ruling. The State asserts that the mandamus ruling constitutes 

error as a matter of law impacting this and other cases. 

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on October 23, 2014. By separate order entered that same day, the circuit court stayed the 

execution of its Final Order pending the outcome of this appeal. 

II. Standard of Review 

This appeal is from a circuit court’s order in a mandamus case. “A de novo 

standard of review applies to a circuit court’s decision to grant or deny a writ of mandamus.” 

Syl. Pt. 1, Harrison Cty. Comm’n v. Harrison Cty. Assessor, 222 W.Va. 25, 658 S.E.2d 555 

(2008); accord Syl. Pt. 1, Staten v. Dean, 195 W.Va. 57, 464 S.E.2d 576 (1995) (“The 

standard of appellate review of a circuit court’s order granting relief through the 

extraordinary writ of mandamus is de novo.”). Similarly, our review is plenary on the issues 

before us pertaining to the interpretation of state statutes and court rules. “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.” Syl. Pt. 1, Chrystal R.M. v. Charlie 

A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995). “Court rules are interpreted using the same 

principles and canons of construction that govern the interpretation of statutes.” Syl. Pt. 2, 

Casaccio v. Curtiss, 228 W.Va. 156, 718 S.E.2d 506 (2011). With this in mind, we consider 

the parties’ arguments. 

III. Discussion 

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The State argues that the respondent is not entitled to a preliminary hearing 

because her criminal complaint was dismissed, and that it was error for the circuit court to 

conclude that a magistrate may not dismiss a felony charge before holding a preliminary 

hearing. The respondent contends that she is entitled to a pre-indictment preliminary hearing 

as a matter of right under the plain language of statutory and judicial rule. This case requires 

us to examine two issues of criminal procedure: an accused’s right to a preliminary hearing, 

and the State’s authority to seek the dismissal of a criminal complaint. We begin our analysis 

with a brief overview of the law of preliminary hearings in West Virginia. 

“[T]his Court has consistently recognized that a preliminary hearing is not a 

federal constitutional mandate, and that there is nothing in our State Constitution which 

would give an independent state constitutional right to a preliminary hearing.” Peyatt v. 

Kopp, 189 W.Va. 114, 116, 428 S.E.2d 535, 537 (1993) (footnote and citations omitted); 

accord Syl. Pt. 1, State ex rel. Rowe v. Ferguson, 165 W.Va. 183, 268 S.E.2d 45 (1980) (“A 

preliminary hearing in a criminal case is not constitutionally required.”). Accordingly, the 

parties focus upon statutory and judicial rules to support their arguments. 

In article one, chapter sixty-two of the West Virginia Code, the Legislature 

established a preliminary procedure to “deal with arrest[s] . . . and the attendant steps to bring 

the arrested person before a magistrate to be informed of the nature of the charge, his right 

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to counsel and the arrangement for bail.” Rowe, 165 W.Va. at 189, 268 S.E.2d at 48. 

Section one of this article provides for the filing of a written complaint stating the essential 

facts of the crime charged,3 while sections two4 through five pertain to the issuance and 

execution of an arrest warrant based upon the filing of that criminal complaint. Section six 

requires that a magistrate court inform the defendant of the nature of the criminal complaint, 

his or her rights, and the possibility of bail. This statute provides, inter alia, that “[t]he 

[magistrate] shall in plain terms inform the defendant of the nature of the complaint against 

him, of his right to counsel and, if the offense is to be presented for indictment, of his right 

to have a preliminary examination.” W.Va. Code § 62-1-6 (2014). Section eight pertains to 

a preliminary examination, commonly referred to as a preliminary hearing: 

If the offense is to be presented for indictment, the 

preliminary examination shall be conducted by a [magistrate] of 

the county in which the offense was committed within a 

reasonable time after the defendant is arrested, unless the 

defendant waives examination. The defendant shall not be 

3

West Virginia Code § 62-1-1 (2014) provides that “[t]he complaint is a written 

statement of the essential facts constituting the offense charged. It shall be made upon oath 

before a [magistrate].” Although the statute originally used the term “justice of the peace,” 

by operation of West Virginia Code § 50-1-17 (2008), all references to that term in this and 

other state statutes was replaced with “magistrate.” 

4

West Virginia Code § 62-1-2 (2014) provides as follows: 

If it appears from the complaint that there is probable cause to 

believe that an offense has been committed and that the 

defendant has committed it, a warrant for the arrest of the 

defendant shall issue to any officer authorized by law to arrest 

persons charged with offenses against the State. More than one 

warrant may issue on the same complaint. 

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called upon to plead. Witnesses shall be examined and evidence 

introduced for the State under the rules of evidence prevailing 

in criminal trials generally. The defendant or his attorney may 

cross-examine witnesses against him and may introduce 

evidence in his own behalf. On motion of either the State or the 

defendant, witnesses shall be separated and not permitted in the 

hearing room except when called to testify. If the defendant 

waives preliminary examination or if, after hearing, it appears 

from the evidence that there is probable cause to believe that an 

offense has been committed and that the defendant has 

committed it, the [magistrate] shall forthwith hold him to answer 

in the court having jurisdiction to try criminal cases. If the 

evidence does not establish probable cause, the defendant shall 

be discharged. After concluding the proceeding the [magistrate] 

shall transmit forthwith to the clerk of the court to which the 

defendant is held to answer all papers in the proceeding and any 

bail taken by him. 

W.Va. Code § 62-1-8 (2014). Similar language is found in procedural rules promulgated by 

this Court. Rule 5(c) of the West Virginia Rules of Criminal Procedure provides, in pertinent 

part, that “[i]f the offense is to be presented for indictment, a defendant is entitled to a 

preliminary examination, unless waived[,]” while Rule 5(e) of the Rules of Criminal 

Procedure for Magistrate Courts states, “[i]f the offense is to be presented for indictment, a 

defendant is entitled to a preliminary examination unless waived.” 

The well-settled purpose of a preliminaryhearing is to determine whether there 

is probable cause to hold a defendant to answer for the alleged offenses set forth in the 

criminal complaint. This purpose is made clear in West Virginia Code § 62-1-8: “[I]f, after 

hearing, it appears from the evidence that there is probable cause to believe that an offense 

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has been committed and that the defendant has committed it, the [magistrate] shall forthwith 

hold him to answer in the court having jurisdiction to try criminal cases.” However, “[i]f the 

evidence does not establish probable cause, the defendant shall be discharged.” Id. This 

same principle was incorporated into identically-worded provisions of Rule 5.1(a) of our 

Rules of Criminal Procedure and Rule 5.1(a) of our Rules of Criminal Procedure for 

Magistrate Courts: “If from the evidence it appears that there is probable cause to believe 

that an offense has been committed and that the defendant committed it, the magistrate shall 

forthwith hold the defendant to answer in circuit court.” Separate subsections of these same 

rules provide that if the evidence at the preliminary hearing does not present probable cause, 

then “the magistrate shall dismiss the complaint and discharge the defendant. The discharge 

of the defendant shall not preclude the state from instituting a subsequent prosecution for the 

same offense.” W.Va. R. Crim. P. 5.1(b), W.Va. R. Crim. P. Mag. Ct. 5.1(b). 

It has long been the law in this state that a preliminary hearing is not conducted 

for the purpose of allowing a criminal defendant to perform discovery: 

“A preliminary examination conducted pursuant to Rule 

5.1 of the West Virginia Rules of Criminal Procedure serves to 

determine whether there is probable cause to believe that an 

offense has been committed and that the defendant committed 

it; the purpose of such an examination is not to provide the 

defendant with discovery of the nature of the State’s case 

against the defendant, although discovery may be a by-product 

of the preliminary examination.” Syl. pt. 1, Desper v. State, 173 

W.Va. 494, 318 S.E.2d 437 (1984). 

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Syl. Pt. 3, State v. Davis, 232 W.Va. 398, 752 S.E.2d 429 (2013). Moreover, a preliminary 

hearing is not required if the state elects to proceed directly to a grand jury without arresting 

the accused, or if the accused is arrested but indicted before the date set for the preliminary 

examination: 

Where the State proceeds under W.Va. Code, 62-1-1, et 

seq., to arrest the accused for an offense which must be brought 

before the grand jury, the defendant is entitled to a preliminary 

hearing under W.Va. Code, 62-1-8 (1965). If, however, the 

State elects to indict him without a preliminary hearing or before 

one can be held, the preliminary hearing is not required. 

Rowe, 165 W.Va. at 183, 268 S.E.2d at 45, syl. pt. 3; accord W.Va. R. Crim. P. Rule 5(c), 

W.Va. R. Crim. P. Mag. Ct. Rule 5(e). Because the grand jury makes the probable cause 

determination necessary for holding the defendant over for trial, the magistrate no longer 

needs to address that issue. 

The State contends that pursuant to the aforementioned law, there is no reason 

to hold a preliminary hearing because the criminal complaint against the respondent was 

dismissed. Conversely, the respondent asserts that because there is a possibility her matter 

may be reviewed by a grand jury, a preliminary hearing is mandatory pursuant to the 

following language in West Virginia Code § 62-1-8: “If the offense is to be presented for 

indictment, the preliminary examination shall be conducted . . . unless the defendant waives 

examination.” See also W.Va. R. Crim. P. 5(c), W.Va. R. Crim. P. Mag. Ct. 5(e). The 

respondent asserts that she did not waive this right when she was before the magistrate. 

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Although the circuit court agreed with the respondent’s assertion, we do not find it 

convincing or persuasive. 

First, the circuit court’s ruling reflects a misapprehension of the reason for 

holding a preliminary hearing. A magistrate is tasked with determining whether there is 

probable cause that a defendant committed a crime so as to justify continuing to hold the 

defendant to answer in court. As indicated above, “if, after hearing, it appears from the 

evidence that there is probable cause to believe that an offense has been committed and that 

the defendant has committed it, the [magistrate] shall forthwith hold him to answer in the 

court having jurisdiction to try criminal cases. If the evidence does not establish probable 

cause, the defendant shall be discharged.” W.Va. Code § 62-1-8, in part (emphasis added); 

accord W.Va. R. Crim. P. 5.1, W.Va. R. Crim. P. Mag. Ct. 5.1. 

Given the magistrate court’s dismissal of the criminal complaint, there are no 

pending criminal charges against the respondent. She is neither incarcerated nor released on 

any type of bond. The magistrate court did not simply cancel the preliminary hearing; rather, 

it dismissed the criminal complaint. Because the respondent is not being “held” to answer 

for a criminal charge, there is no reason for the magistrate to make a probable cause 

determination and no basis to conduct a preliminary hearing. Although the respondent may 

wish to obtain information from the State for purposes of defending against a possible future 

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indictment, pre-trial discovery is not the purpose of a preliminary hearing. See e.g., Desper, 

173 W.Va. at 495, 318 S.E.2d at 438-39, syl. pt. 1. 

Second, the manner in which the respondent and the circuit court interpret the 

phrase “[i]f the offense is to be presented for indictment, the preliminary examination shall 

be conducted[,]” is incongruous with the remainder of West Virginia Code § 62-1-8 and 

other statutes in article one, chapter sixty-two. West Virginia Code § 62-1-8 is “part of a 

larger criminal procedure article [that] deals with the initiation of a criminal case beginning 

with the filing of a complaint for an arrest warrant.” Rowe, 165 W.Va. at 189, 268 S.E.2d 

at 48. As such, it must be read in pari materia with its related statutes. Id. “Statutes which 

relate to the same subject matter should be read and applied together so that the Legislature’s 

intention can be gathered from the whole of the enactments.” Syl. Pt. 3, Smith v. State 

Workmen’s Comp. Comm’r, 159 W.Va. 108, 219 S.E.2d 361 (1975); see also Syl. Pt. 5, in 

part, Fruehauf Corp. v. Huntington Moving & Storage Co., 159 W.Va. 14, 217 S.E.2d 907 

(1975) (“Statutes which relate to the same persons or things, or to the same class of persons 

or things, or statutes which have a common purpose will be regarded in pari materia to 

assure recognition and implementation of the legislative intent.”). 

Reading West Virginia Code § 62-1-8 in context with the rest of article one 

makes clear that there must be a pending criminal complaint before an accused is entitled to 

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a preliminary hearing. West Virginia Code § 62-1-1 explains that “[t]he complaint is a 

written statement of the essential facts constituting the offense charged.” Id. (emphasis 

added.) West Virginia Code § 62-1-2 provides for the issuance of an arrest warrant if it 

appears from the complaint that there is probable cause to believe that an offense has been 

committed and that the defendant has committed it. West Virginia Code § 62-1-6 directs the 

magistrate to inform the defendant “of the nature of the complaint against him, of his right 

to counsel and, if the offense is to be presented for indictment, of his right to have a 

preliminary examination.” Id. (emphasis added). West Virginia Code § 62-1-8 requires the 

magistrate to make a probable cause determination in order to “hold” the accused for the 

court having criminal jurisdiction over the matter. All of these provisions presuppose there 

is a pending criminal complaint for which the defendant is subject to arrest; was arrested and 

incarcerated; or was arrested and released on bail or personal recognizance–in other words, 

the defendant is in some manner being held to answer for a particular charge. In short, these 

statutes and the corresponding court rules clearly demonstrate that a preliminary hearing is 

only required when there is a pending criminal complaint. Because the criminal complaint 

against the respondent was dismissed in its entirety, the preliminary procedures specified in 

West Virginia Code §§ 62-1-1 through 62-1-12 for the handling of that criminal complaint 

are wholly inapplicable. 

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As this Court has previouslyrecognized, West Virginia Code § 62-1-8 provides 

only a conditional right to a preliminary hearing. In Rowe, the relators argued they were 

entitled to a preliminary hearing after they were indicted by a grand jury. 165 W.Va. 183, 

268 S.E.2d 45. The magistrate had scheduled a preliminary hearing on the criminal 

complaint, but the hearing was cancelled upon the issuance of the indictment. We 

determined that if the Legislature had intended an absolute right to a preliminary hearing 

following indictment, it would have expressly provided for such hearing. Id. at 191-92, 268 

S.E.2d at 49. Instead, if “the State elects to indict [an accused] without a preliminary hearing 

or before one can be held, the preliminary hearing is not required.” Id. at 183, 268 S.E.2d 

at 45, syl. pt. 3, in part. 

Examining the meaning of the phrase, “[i]f the offense is to be presented for 

indictment, the preliminary examination shall be conducted[,]” that appears in West Virginia 

Code § 62-1-8, the Rowe Court recognized “two basic principles. First, [the phrase] 

demonstrates a recognition that all offenses need not be presented for indictment. Second, 

the wording [of the phrase] conditions the right to a preliminary hearing on a future event . 

. . that is, the offense will be presented to the grand jury.” Rowe, 165 W.Va. at 191, 268 

S.E.2d at 49. Notably, our analysis in Rowe did not address or even contemplate the prior 

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dismissal of the criminal complaint about which the preliminary hearing would pertain.5 

When viewed in this context, it is clear West Virginia Code § 62-1-8 sets forth an additional 

principle underlying the conditional right to a preliminary hearing: The subject “offense” 

must be charged in a pending criminal complaint. 

The respondent relies upon Peyatt v. Kopp, wherein this Court stated that “Rule 

5 of the West Virginia Rules of Criminal Procedure provides . . . that a defendant is entitled 

to a preliminary hearing unless it is waived.” Peyatt, 189 W.Va. at 116, 428 S.E.2d at 537. 

However, we did not consider in Peyatt whether a person is entitled to a preliminary hearing 

after the criminal complaint is dismissed. Moreover, in Peyatt this Court recognized 

limitations on the right to a preliminary hearing, including that no such hearing is required 

after an indictment has issued,6 that a preliminary hearing is not for the purpose of providing 

the defendant with discovery of the nature of the State’s case,7 and that evidence introduced 

at a preliminary hearing may be limited to the question of probable cause.8 Thus, Peyatt does 

not support the respondent’s position. 

5

One possible reason why Rowe did not contemplate the prior dismissal of the criminal 

complaint is that most defendants are not likely to object to the dismissal of their criminal 

charges. 

6

189 W.Va. at 116, 428 S.E.2d at 537.
 

7

189 W.Va. at 117, 428 S.E.2d at 538.
 

8

189 W.Va. at 117, 428 S.E.2d at 538.
 

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Based on the above, we conclude, and now hold, that where a criminal 

complaint initiated pursuant to West Virginia Code § 62-1-1 has been dismissed, the right 

to a preliminary hearing arising under West Virginia Code § 62-1-8 no longer exists. 

We also reject the circuit court’s conclusion that if the state might seek an 

indictment in the future, a magistrate court cannot dismiss a criminal complaint without 

holding a preliminary hearing.9 As discussed above, a preliminary hearing is not a 

prerequisite for a grand jury indictment. See Rowe, 165 W.Va. at 183, 268 S.E.2d at 45, syl. 

pt. 3, in part (“If, however, the State elects to indict him without a preliminary hearing . . . 

the preliminary hearing is not required.”); accord Syl. Pt. 6, in part, State v. Hutcheson, 177 

W.Va. 391, 352 S.E.2d 143 (1986); (“The . . . failure to hold a preliminary hearing will not 

vitiate an indictment.”); W.Va. R. Crim. P. Rule 5(c) (“[T]he preliminary examination shall 

not be held if the defendant is indicted[.]”); W.Va. R. Crim. P. Mag. Ct. Rule 5(e) (same). 

The Legislature has directed that, 

[p]rosecutions for offenses against the State, unless otherwise 

provided, shall be by presentment or indictment. The trial of a 

person on a charge of felony shall always be by indictment; and 

indictment may be found in the first instance, whether the 

accused has been examined or committed by a [magistrate] or 

not. 

W.Va. Code § 62-2-1 (2014) (emphasis added). 

9

The circuit court even indicated during the mandamus hearing that the criminal 

charges should be re-filed just to afford the respondent a preliminary hearing. 

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In the instant matter, the State moved to dismiss the criminal complaint 

pursuant to Rule 16(a) of the Rules of Criminal Procedure for Magistrate Courts, which 

provides that “[t]he attorney for the state may move to dismiss a complaint, and if the 

magistrate grants the motion the prosecution shall thereupon terminate. Such a dismissal 

shall not be granted during the trial without the consent of the defendant.” Nearly identical 

language is found in Rule 48(a) of the Rules of Criminal Procedure: “The attorney for the 

state may by leave of court file a dismissal of an indictment, information or complaint, and 

the prosecution shall thereupon terminate. Such a dismissal may not be filed during the trial 

without the consent of the defendant.” These procedural rules restrict a prosecutor by 

requiring leave of court for a dismissal. State v. McWilliams, 177 W.Va. 369, 373, 352 

S.E.2d 120, 125 (1986) (“A prosecutor cannot dismiss criminal charges without the prior 

approval of the court.”) Furthermore, when making a motion to dismiss, the prosecutor must 

provide the court with reasons for the dismissal. State v. Robert Scott R., Jr., 233 W.Va. 12, 

27, 754 S.E.2d 588, 603 (2014); Syl. Pt. 11, Myers v. Frazier, 173 W.Va. 658, 319 S.E.2d 

782 (1984); State ex rel. Skinner v. Dostert, 166 W.Va. 743, 753, 278 S.E.2d 624, 632 

(1981). Importantly, the court should not grant the motion “unless the dismissal is consonant 

with the public interest in the fair administration of justice.” Myers, 173 W.Va. at 662, 319 

S.E.2d at 786, syl. pt. 12, in part. Finally, the rules dictate that the defendant’s consent to 

dismissal is only required if the motion is made during trial. W.Va. R. Crim. P. 48(a); W.Va. 

R. Crim. P. Mag. Ct. 16(a). 

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In the case at bar, the State did seek leave of court to dismiss the criminal 

complaint, and the magistrate court granted the motion. Moreover, in the mandamus case 

the circuit court recognized that the State’s motion to dismiss was made, at least in part, 

because the police had not completed the investigation of the respondent’s entrapment claim. 

The suggestion of entrapment had been raised just one day earlier. In light of this, there was 

no basis upon which the circuit court could conclude that the dismissal of the respondent’s 

criminal complaint was contrary to the fair administration of justice. 

Rule 16(a) of the Rules of Criminal Procedure for Magistrate Courts and Rule 

48(a) of the Rules of Criminal Procedure do not state that the dismissal of a pre-indictment 

felony criminal complaint must be with prejudice or, as the circuit court coined it, be 

“dismissed altogether.” Indeed, given the procedural circumstances of the respondent’s case, 

such a conclusion would be illogical in view of additional court rules. Even if the State had 

gone forward with the preliminary hearing and the magistrate court had dismissed the 

complaint against the respondent for a lack of probable cause, the State still could have 

sought an indictment against her. When discussing preliminary hearings, both Rule 5.1(b) 

of the Rules of Criminal Procedure and Rule 5.1(b) of the Rules of Criminal Procedure for 

Magistrate Courts provide as follows: 

Discharge of defendant. – If from the evidence it appears 

that there is no probable cause to believe that an offense has 

been committed or that the defendant committed it, the 

magistrate shall dismiss the complaint and discharge the 

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defendant. The discharge of the defendant shall not preclude 

the state from instituting a subsequent prosecution for the same 

offense. 

Id. (emphasis added). If an offense alleged in a pre-indictment complaint that is dismissed 

for a lack of probable cause may thereafter be presented to a grand jury, it would be illogical 

to conclude that an offense alleged in a pre-indictment complaint dismissed in the interest 

of the “fair administration of justice” could not also be considered by a grand jury. See 

Myers, 173 W.Va. at 662, 319 S.E.2d at 786, syl. pt. 12, in part. Under our state constitution, 

the decision on whether to indict a person rests with the grand jury. W.Va. Const. art. III, 

§ 4; see Syl. Pt. 1, State v. Adams, 193 W.Va. 277, 456 S.E.2d 4 (1995). 

The circuit court’s mandamus order expresses the concern that a prosecutor 

might seek the dismissal of a criminal complaint in order to gain an improper tactical 

advantage over a defendant. While this is a legitimate consideration, the solution is not to 

provide a preliminary hearing to a person who is no longer facing a pending criminal charge, 

or delay the dismissal of a complaint simply to hold a preliminary hearing. Instead, the 

remedylies with the magistrate court’s responsibilityto ensure that the dismissal is consonant 

with the public interest in the fair administration of justice. If a magistrate finds that an 

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improper motive lies behind a prosecutor’s motion to dismiss, the magistrate should deny the 

motion.10 

The legal standard for granting mandamus relief is well-settled: 

A writ of mandamus will not issue unless three elements 

coexist–(1) a clear legal right in the petitioner to the relief 

sought; (2) a legal duty on the part of respondent to do the thing 

which the petitioner seeks to compel; and (3) the absence of 

another adequate remedy. 

Syl. Pt. 2, State ex rel. Kucera v. City of Wheeling, 153 W.Va. 538, 170 S.E.2d 367 (1969). 

For the reasons set forth above, and under the facts presented herein, the respondent does not 

have a clear legal right to a preliminary hearing and the magistrate has no legal duty to 

provide such a hearing. As such, mandamus does not lie. 

IV. Conclusion 

The October 23, 2014, Final Order of the Circuit Court of Cabell County is 

reversed. 

Reversed. 

10In addition, if there is cause to believe a person was subjected to false arrest or 

wrongful prosecution, that individual may pursue remedies in tort. 

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