West Virginia Felony Crimes and Sentences

Learn the basics of how felony sentencing works in West Virginia, including when you might be eligible for a suspended sentence and probation rather than prison.

By , Legal Editor

Felonies in West Virginia are crimes that may be punished by incarceration in state prison. All other, less-serious crimes are treated as misdemeanors. (W.V. Code § 61-11-1 (2020).)

How Felony Sentencing Works in West Virginia

West Virginia uses what's known as "indeterminate" sentencing for most—but not all—felonies. That means that the judge sets a minimum and maximum term when imposing a prison sentence (such as five to 10 years). The defendant will be eligible to be considered for parole after serving the minimum term. (W.V. Code §§ 61-11-16, 62-12-13a (2020).)

A few serious felonies require definite terms. For instance, first-degree murder requires a life sentence, while second-degree murder requires a fixed term of between 10 and 40 years in prison. Even for other felonies, a judge may designate a definite term in prison. But the parole board will consider that sentence as no more than the judge's opinion about the appropriate time that the defendant should serve before being considered for release on parole. (W.V. Code §§ 61-2-2, 61-2-3, 61-11-16 (2020).)

Unlike many states, West Virginia doesn't group felonies into classes for purposes of sentencing. Instead, the laws for individual felonies spell out the allowable sentences for that crime. Most criminal statutes list both minimum and maximum terms, while some list only the minimum term. For example:

  • Malicious assault carries a minimum sentence of at least two years and a maximum term of no more than ten years.
  • First-degree robbery (using violence or the threat of violence) simply requires a minimum sentence of at least 10 years, while second-degree robbery (which involves putting the victim in fear of injury or using something like a stun gun to disable the victim) requires a minimum sentence of at least five years and a maximum of no more than 18 years.

Certain felonies allow judges to impose a fine in addition to a prison sentence. For instance, someone convicted of manufacturing meth could be fined up to $25,000 in addition to the indeterminate prison sentence, which has a one-year minimum and a 15-year maximum. (W.V. Code §§ 60A-4-401, 61-2-9, 61-2-12 (2020).)

When Felonies May Be Punished as Misdemeanors

For some felonies, West Virginia gives judges the option of sentencing the defendant to no more than a year in jail and/or a fine, which is normally a misdemeanor sentence. For instance, grand larceny (theft) carries an indeterminate prison sentence with a minimum or at least one year and a maximum of no more than 10 years, but the judge may instead sentence the defendant to a year or less in jail plus a fine of no more than $2,500. (W.V. Code § 61-3-13 (2020).)

How Prior Felonies Affect Sentences in West Virginia

If you have a previous felony conviction on your record, and you're convicted of another qualifying felony, you'll face a stiffer sentence. (Qualifying felonies cover a wide range of crimes, including many drug offenses, violent crimes, and serious property crimes.) If your current crime carries a definite sentence, you will serve an additional five years in prison. Otherwise, the minimum term of your indeterminate sentence will be twice what's called for in the statute for your current crime. (W.V. Code § 61-11-18 (2020).)

In addition, some crimes that are normally misdemeanors become felonies when you've had a certain number of previous convictions for the same crime. For instance, domestic violence (assault and battery) is a misdemeanor for a first or second offense, but a third offense within ten years of a previous conviction is treated as a felony, punishable by up to five years in prison and/or a fine of no more than $2,500. (W.V. Code § 61-2-28 (2020).)

Alternative to Prison Sentences for Felonies

Under certain circumstances, West Virginia law allows judges to suspend a prison sentence for a felony conviction and order the defendant released on probation with conditions—which might include home incarceration with electronic monitoring. Some felonies make you ineligible for probation, including any crime that involved the use or brandishing of a gun. (W.V. Code §§ 62-11B-4, 62-12-2, 62-12-3 (2020).)

Getting Legal Help

Felony convictions have serious and lasting consequences, even after you've served your prison sentence. If you are charged with a felony, you should contact a West Virginia criminal defense attorney as soon as possible. An experienced attorney can help you protect your rights, negotiate a favorable plea bargain if that's appropriate in your case, and obtain the best outcome possible under the circumstances.

Look Out for Legal Changes

States can change their laws at any time. You can find the current version of any statute mentioned in this article by using this search tool from the Library of Congress. Be aware, however, that court opinions can affect how judges interpret and apply the law—another good reason to consult a lawyer if you're concerned about actual or potential criminal charges.

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