Thomas W. Smith, Esq.
Darrell V. McGraw, Jr., Esq.
Charleston, West Virginia Attorney General
Attorney for the Appellant Leah P. Macia, Esq.
Assistant Attorney General
Charleston, West Virginia
Attorneys for the Appellee
The Opinion of the Court was delivered PER CURIAM.
JUDGE FRED RISOVICH, II, sitting by temporary assignment.
JUSTICE DAVIS concurs in part and dissents in part and reserves the right to file a separate opinion.
JUSTICE SCOTT did not participate in the decision of the Court.
3. This Court will not consider questions, nonjurisdictional in their nature,
which have not been acted upon by the trial court. Syllabus Point 4, Wheeling Downs
Racing Association v. West Virginia Sportservice, Inc., 157 W.Va. 93, 199 S.E.2d 308
4. The statute in force at the time of the commission of an offense governs the character of the offense, and generally the punishment prescribed thereby, unless, as provided by our statute, the defendant elects to be punished as provided in an amendment thereof. Syllabus Point 4, State v. Wright, 91 W.Va. 500, 113 S.E. 764 (1922).
5. When a general savings statute specifically provides for the application of mitigated penalties upon the election of the affected party, he is entitled to choose the law under which he wishes to be sentenced. W.Va. Code § 2-2-8. Syllabus Point 2, State ex rel. Arbogast v. Mohn, 164 W.Va. 6, 260 S.E.2d 820 (1979).
The appellant, Timothy Ray Cline, appeals his conviction in the Circuit Court
of Mercer County for the first offense of driving on a suspended license in violation of W.Va.
Code, 17B-4-3(a) . At the time of the appellant's arrest, the statute stated that, upon
conviction, a defendant was required to serve a mandatory 48-hour sentence in a jail, and pay
a fine of between $50.00 and $500.00. The circuit court, in an order dated August 10, 1998,
sentenced the appellant to 48 hours in a regional jail, and fined the appellant $250.00.
After examination of the record, the briefs and the arguments of the parties, we conclude that sufficient evidence was introduced by the State to support the appellant's conviction. However, as set forth below, because the Legislature amended W.Va. Code, 17B- 4-3(a) in 1999 to remove jail as a sentencing alternative from the statute, we reverse the circuit court's August 10, 1998 sentencing order and remand the case for resentencing of the defendant.
The appellant, however, also asserts that the troopers' warrant only charged the
appellant with having his license suspended for unpaid citation. The appellant contends
that he never appeared in magistrate court to contest the 1997 citation, and therefore the
magistrate could not have assessed fines and costs that were unpaid when the appellant was
arrested in January 1998. Hence, he contends that the evidence was insufficient to support
a finding that he was driving on a license suspended for [an] unpaid citation. We decline
to address this semantic argument, as it was never raised in the circuit court. As we stated
in Syllabus Point 4 of Wheeling Downs Racing Association v. West Virginia Sportservice,
Inc., 157 W.Va. 93, 199 S.E.2d 308 (1973): This Court will not consider questions,
nonjurisdictional in their nature, which have not been acted upon by the trial court. In
accord, Syllabus Point 2, Sands v. Security Trust Co., 143 W.Va. 522, 102 S.E.2d 733
The second argument posed by the appellant is that West Virginia law only requires a vehicle to have one operating tail light.See footnote 3 3 The appellant argues that he had an operating tail light when he was stopped by Trooper Bledsoe in June 1997, and that there was therefore no basis for Trooper Bledsoe to issue a citation for having a broken tail light, and that the appellant's failure to appear to contest the citation could not form the basis for the appellant's current conviction.
We reject the appellant's argument. The first and foremost reason to reject the argument is the fact that the appellant never responded in court to contest the 1997 citation. We again turn to our general rule that, when a nonjurisdictional question has not been refined, developed and adjudicated by the trial court, it will not be decided on appeal in the first instance. Wheeling Downs Racing Association, supra; Sands v. Security Trust Co., supra. If the appellant had appeared and responded to the charge alleged in the 1997 citation, a record could have been made of whether or not the appellant had an operating tail light and was not operating a vehicle in violation of the Code. Another reason for rejecting the argument is that, in this case, the appellant was not charged with driving with a broken tail lamp -- he was charged with and convicted of driving on a suspended license. Hence, we have no factual record upon which to base a decision. The appellant never contested the grounds for suspending his license, and the evidence establishes beyond a reasonable doubt that the appellant did unlawfully operate a vehicle after his license was suspended in violation of W.Va. Code, 17B-4-3(a) .
The appellant next contends that the reason the two state troopers stopped him in January 1998 was because of a broken tail light. The appellant, referring to his previous argument, contends that because he did have at least one operating tail light, his vehicle was in compliance with West Virginia law. As we have stated:
Probable cause to make a misdemeanor arrest without a warrant exists when the facts and circumstances within the knowledge of the arresting officer are sufficient to warrant a prudent man in believing that a misdemeanor is being committed in his presence.
Syllabus, Simon v. West Virginia Dept. of Motor Vehicles, 181 W.Va. 267, 382 S.E.2d 320 (1989). The appellant contends that because his vehicle had at least one operating tail light, the facts were not sufficient to warrant the two troopers' belief that a misdemeanor was being committed in their presence. In other words, there was no probable cause to stop the appellant's vehicle, and the subsequent license check that revealed the appellant's license had been suspended was unlawful.
We reject the appellant's argument. Again, by failing to raise this argument below, the appellant has waived the argument for appellate review.
The last issue presented by the appellant concerns recent legislative amendments to the statute under which the appellant was convicted. Effective March 13, 1999, the Legislature amended W.Va. Code, 17B-4-3(a) to remove the mandatory 48-hour jail sentence, and in fact to remove any jail sentence, for a first offense of driving on a suspended or revoked license. See 1999 Acts of the Legislature, ch. 194. The 1999 statute states, in pertinent part, that:
[A]ny person who drives a motor vehicle on any public highway of this state at a time when his or her privilege to do so has been lawfully suspended or revoked by this state or any other jurisdiction is, for the first offense, guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than one hundred dollars nor more than five hundred dollars[.]
The appellant contends that the penalty provisions of the 1999 version of W.Va. Code, 17B-4-3 are applicable to his case by virtue of W.Va. Code, 2-2-8 , which states (with emphasis added):
The repeal of a law, or its expiration by virtue of any provision contained therein, shall not affect any offense committed, or penalty or punishment incurred, before the repeal took effect, or the law expired, save only that the proceedings thereafter had shall conform as far as practicable to the laws in force at the time such proceedings take place, unless otherwise specially provided; and that if any penalty or punishment be mitigated by the new law, such new law may, with the consent of the party affected thereby, be applied to any judgment pronounced after it has taken effect.
The appellant contends that because the penalty or punishment imposed by the 1994 statute is mitigated by the new law, he is entitled to choose to be sentenced under the new statute. We agree.
W.Va. Code, 2-2-8  establishes a general rule that the statute in effect at the time of the commission of an offense governs the character of the offense and, generally, the punishment prescribed thereby. State ex rel. Arbogast v. Mohn, 164 W.Va. 6, 9, 260 S.E.2d 820, 822 (1979); Syllabus Point 4, State v. Wright, 91 W.Va. 500, 113 S.E. 764 (1922). The purpose of the statute was to correct the problems caused by the common law doctrine of abatement, under which the repeal of a criminal statute, without the inclusion by the Legislature of a specific savings clause, operated as a discharge from criminal liability of all persons who had committed offenses under the old law and had not been tried prior to the date of the repeal. State ex rel. Arbogast v. Mohn, 164 W.Va. at 10, 260 S.E.2d at 823. The statute operates to preserve prosecution of offenses committed under a repealed statute which have not reached final judgment. Id.
However, when the penalty established by a criminal statute is amended in a manner favorable to a defendant, W.Va. Code, 2-2-8 specifically allows a defendant to choose to be sentenced in accordance with the new penalty. We have stated:
The statute in force at the time of the commission of an offense governs the character of the offense, and generally the punishment prescribed thereby, unless, as provided by our statute, the defendant elects to be punished as provided in an amendment thereof.
Syllabus Point 4, State v. Wright, 91 W.Va. 500, 113 S.E. 764 (1922). We restated this principle in State ex rel. Arbogast v. Mohn, where we held at Syllabus Point 2:
When a general savings statute specifically provides for the application of mitigated penalties upon the election of the affected party, he is entitled to choose the law under which he wishes to be sentenced. W.Va. Code § 2-2-8.
We recently reaffirmed this principle in State v. Easton, 203 W.Va. 631, 510 S.E.2d 465 (1998) where we held at Syllabus Point 6:
If the amended penal statute provides lesser penalties for the same conduct proscribed by the statute in effect at the time of the offense, the defendant shall have an opportunity to elect under which statute he/she wishes to be sentenced, consistent with the statutory mandate contained in W.Va. Code § 2-2-8
(1923) (Repl.Vol.1994) and our prior directive set forth in
Syllabus point 2 of State ex rel. Arbogast v. Mohn, 164 W.Va.
6, 260 S.E.2d 820 (1979).
The 1999 legislative amendments to W.Va. Code, 17B-4-3(a) did not alter the character of the offense committed by the appellant. The amendments only mitigated the penalty or punishment for the offense. We therefore conclude that, under W.Va. Code, 2-2-8, the appellant may elect to be sentenced under either W.Va. Code, 17B-4-3(a)  or 17B- 4-3(a) .
Because the appellant was sentenced by the circuit court under the 1994 version of W.Va. Code, 17B-4-3(a), we believe that the sentencing order must be set aside and the case remanded. Upon remand, the circuit court must resentence the appellant, and allow the appellant to elect which version of W.Va. Code, 17B-4-3(a) will govern his sentencing.
Footnote: 1 1W.Va. Code, 50-3-2a(d)(1)  states, in pertinent part:
If a person charged with any criminal violation of this code fails to appear or otherwise respond in court, the magistrate court shall notify the commissioner of the division of motor vehicles thereof within fifteen days of the scheduled date to appear, unless the person sooner appears or otherwise responds in court to the satisfaction of the magistrate. Upon such notice, the division of motor vehicles shall suspend any privilege the person failing to appear or otherwise respond may have to operate a motor vehicle in this state, including any driver's license issued to the person by the division of motor vehicles, until final judgment in the case and, if a judgment of guilty, until such time that all the costs, fines, fees, forfeitures, restitution or penalties imposed are paid in full[.]