Jail Exposure for Shoplifting and Failure-to-Appear Charges in West Virginia

Attorney Answer

You are not going to jail today — but two shoplifting charges put you one conviction away from a felony carrying one to ten years, and nobody appears to have told you that.

The governing law

Shoplifting. W. Va. Code § 61-3A-3 sets a graduated ladder that counts convictions, not incidents. A first offense under $500 is a misdemeanor with a fine up to $250. A first offense of $500 or more is a misdemeanor with a fine of $100 to $500 and/or up to 60 days. A second offense under $500 is a misdemeanor with a fine of $100 to $500 and/or up to 6 months. A second offense of $500 or more carries a minimum $500 fine and 6 months to 1 year. A third or subsequent offense is a felony, punishable by 1 to 10 years and a fine of $500 to $5,000 — regardless of the value of what was taken.

That last line is why this matters more than the fine on your citation. If both of your current charges become convictions, the next one is a felony no matter how small it is.

Separately, W. Va. Code § 61-3-13(b) makes simple larceny of goods worth less than $1,000 petit larceny, a misdemeanor punishable by up to 1 year in jail and/or a fine up to $2,500. That section contains no repeat-offense enhancement on its face. Which statute you are charged under therefore changes your long-term exposure considerably.

Failure to appear. W. Va. Code § 62-1C-17b makes failing to appear after release on recognizance or bail, without just cause, a separate chargeable offense. The penalty tracks the underlying case: where it is a misdemeanor, up to a $1,000 fine or up to 1 year in jail; where it is a felony, up to a $5,000 fine or 1 to 5 years. These are on top of any bail forfeiture.

That same section contains two protections worth checking. A court may issue a capias or bench warrant only if you received effective written notice of the hearing — date, time, location, and purpose — at least 10 days in advance. And absent a documented history of failing to appear, the court must wait 24 hours before issuing a capias, which gives a defendant a window to appear voluntarily and avoid prosecution.

What you can do

1. Put your court date in your phone with two alarms and arrange transportation now. Another missed date is not just a warrant — under § 62-1C-17b it is a new criminal charge with its own jail exposure. 2. Check your paperwork for each hearing you missed. Did you actually receive written notice, stating date, time, location, and purpose, at least 10 days beforehand? If not, that notice requirement is a real defense on the failure-to-appear counts and your lawyer needs to know immediately. 3. Apply for a public defender at or before your next appearance if you cannot afford counsel. Say it out loud to the magistrate. 4. Find out two facts and write them down: the alleged dollar value of the goods in each shoplifting charge, and whether you have any prior shoplifting conviction. Those two facts determine where you sit on the § 61-3A-3 ladder. 5. Ask your lawyer about diversion, a deferred disposition, or a plea to something outside § 61-3A-3. Keeping convictions off that ladder is worth far more to you than the size of any fine. 6. If there is an outstanding warrant, ask counsel about arranging a scheduled surrender rather than being picked up at a traffic stop.

⏱ Time limits apply. § 62-1C-17b conditions a capias on effective written notice given at least 10 days in advance, and provides a 24-hour window before a capias issues where there is no documented history of failing to appear. Whether either applies to you depends on the notice you actually received and on your record of appearances.