John P. Adams
Pamela Jean Games-Neely
Thomas L. Stanley Berkeley County
Public Defender Corporation Prosecuting Attorney
Martinsburg, West Virginia Christopher C. Quasebarth
Attorneys for the Petitioner Assistant Prosecuting Attorney
Martinsburg, West Virginia
Attorneys for the Respondent
The Opinion of the Court was delivered PER CURIAM.
1. In determining whether to grant a rule to show cause in prohibition when a
court is not acting in excess of its jurisdiction, this Court will look to the adequacy of other
available remedies such as appeal and to the over-all economy of effort and money among
the litigants, lawyers and courts; however, this Court will use prohibition in this discretionary
way to correct only substantial, clear cut, legal errors plainly in contravention of a clear
statutory, constitutional, or common law mandate which may be resolved independently of
any disputed facts and only in cases where there is a high probability that the trial will be
completely reversed if the error is not corrected in advance. Syllabus point 1, Hinkle v.
Black, 164 W. Va. 112, 262 S.E.2d 744 (1979).
2. The determination of what is good cause, pursuant to W. Va. Code §
62-3-1, for a continuance of a trial beyond the term of indictment is in the sound discretion
of the trial court[.] Syllabus point 2, in part, State ex rel. Shorter v. Hey, 170 W. Va. 249,
294 S.E.2d 51 (1981).
3. Where the trial court is of the opinion that the state has deliberately or
oppressively sought to delay a trial beyond the term of indictment and such delay has
resulted in substantial prejudice to the accused, the trial court may, pursuant to W. Va. Code
§ 62-3-1, finding that no good cause was shown to continue the trial, dismiss the indictment
with prejudice, and in so doing the trial court should exercise extreme caution
and should dismiss an indictment pursuant to W. Va. Code § 62-3-1, only in furtherance
of the prompt administration of justice. Syllabus point 4, State ex rel. Shorter v. Hey, 170
W. Va. 249, 294 S.E.2d 51 (1981).
David N. Murray, petitioner/defendant below (hereinafter referred to as Mr. Murray), seeks a writ of prohibition under the original jurisdiction of this Court. Mr. Murray was indicted by a grand jury in the Circuit Court of Berkeley County on two counts of first degree sexual assault. He then filed a motion with the circuit court seeking to have the indictment dismissed on the grounds of unexcusable delay in prosecution. The respondent, David H. Sanders, Judge of the Circuit Court of Berkeley County, denied the motion to dismiss. Now, Mr. Murray seeks to have this Court prohibit the circuit court from proceeding with the indictment. Based upon the parties' arguments on appeal, the record designated for appellate review, and the pertinent authorities, we deny Mr. Murray's petition for writ of prohibition.
Mr. Murray subsequently was re-indicted in the May, 2000, term of the
circuit court. The second indictment contained the previous charges of two counts of first
degree sexual assault and added the word intentionally, which was absent from the first
indictment. On June 28, 2000, Mr. Murray filed a motion to dismiss the second
indictment, asserting that he had not been tried under the first indictment in the February
term of the circuit court as contemplated in the one-term rule of W. Va. Code § 62-3-1
(2000). The trial court denied the motion. Mr. Murray thereafter filed this petition for
writ of prohibition.
This Court has previously noted that [p]rohibition lies only to restrain inferior courts from proceeding in causes over which they have no jurisdiction, or, in which, having jurisdiction, they are exceeding their legitimate powers and may not be used as a substitute for writ of error, appeal or certiorari. Syl. pt. 1, Crawford v. Taylor, 138 W. Va. 207, 75 S.E.2d 370 (1953). See Syl. pt. 2, State ex rel. Peacher v. Sencindiver, 160 W. Va. 314, 233 S.E.2d 425 (1977) (A writ of prohibition will not issue to prevent a simple abuse of discretion by a trial court. It will only issue where the trial court has no jurisdiction or having such jurisdiction exceeds its legitimate powers. W. Va. Code, 53-1- 1.).
Before this Court, the State contends that W. Va. Code § 62-3-1 is not
applicable to this case as presented in the petition. The State argues further that dismissal
of the February indictment terminated that proceeding. Thus, the subsequent re-indictment
in May was not a continuation of the February indictment.See footnote 2
We reject the State's limitation
of the term continuation. This Court has previously acknowledged that a dismissal of
an indictment and a subsequent re-indictment constitute a continuance under W. Va. Code
§ 62-3-1. See State v. Lambert, 175 W. Va. 141, 331 S.E.2d 873 (1985) (per curiam).
The second issue is whether good cause was established for dismissal of
the first indictment. In syllabus point 2 of State ex rel. Shorter v. Hey, 170 W. Va. 249,
294 S.E.2d 51 (1981), we held, in part, that [t]he determination of what is good cause,
pursuant to W. Va. Code § 62-3-1, for a continuance of a trial beyond the term of
indictment is in the sound discretion of the trial court[.] The State sought dismissal of
the first indictment on the grounds that the indictment was flawed because it failed to state
that the crimes were committed intentionally. Mr. Murray contends that this excuse was
not good cause to dismiss the indictment because the crimes charged involved rape of a
minor, and therefore, intent was not an element of the offenses.
During the proceedings below, the trial court found the dismissal was for
good cause. To support its decision, the trial court ruled that [t]he assistant prosecutor
felt duty bound to investigate the propriety of the charges in the indictment and thereafter
seek re-indictment. The trial court then concluded that the assistant prosecuting
attorney's actions were not a ruse to deny the Defendant a speedy trial[.]See footnote 3
by the trial court was consistent with this Court's prior ruling in Syllabus point 4 of Stateex
rel. Shorter v. Hey:
Where the trial court is of the opinion that the state has deliberately or oppressively sought to delay a trial beyond the term of indictment and such delay has resulted in substantial prejudice to the accused, the trial court may, pursuant to W.Va. Code § 62-3-1, finding that no good cause was shown to continue the trial, dismiss the indictment with prejudice, and in so doing the trial court should exercise extreme caution and should dismiss an indictment pursuant to W. Va. Code § 62-3-1, only in furtherance of the prompt administration of justice.
170 W. Va. 249, 294 S.E.2d 51.
No evidence was presented by Mr. Murray to either the trial court, or this Court, to show
that the State deliberately or oppressively, delayed the prosecution in this case. More
importantly, Mr. Murray has not established that the delay caused substantial prejudice
to his preparation for defending against the indictment.See footnote 4
Finally, the trial court determined that even with the delay in the case, the trial in
this matter was still scheduled within three-terms of the Court. In State v. Carrico, 189
W. Va. 40, 427 S.E.2d 474 (1993), we explained the difference between the one-term rule
of W. Va. Code § 62-3-1 and the three-term rule of W. Va. Code § 62-3-21 (2000)See footnote 5
[T]he three-term rule provides that a post-indictment delay cannot be much longer than a year without an act on the defendant's part to extend the term between indictment and trial; the three-term rule operates no matter whether the defendant asks for a trial . . .; the one-term rule . . . prevents extreme prejudice against a defendant for delay, for if an event that may cause prejudice is impending and the defendant moves for a trial within one-term of court, the prosecution will need to show a high level of good cause to persuade the court to continue the case.
Carrico, 189 W.Va. at 44, 427 S.E.2d at 478 (citations omitted).
In Carrico the trial court permitted the prosecutor to nolle prosequi the first
indictment against the defendant and obtain a second indictment charging the same
offenses. After the defendant's conviction he appealed arguing that he was denied a
speedy trial. This Court rejected the argument and held that the prosecution is entitled
to re-indict after a nolle prosequi if the prosecution can conduct the trial within the
constraints of the three-term rule. Carrico, 189 W. Va. at 45, 427 S.E.2d at 479.
Carrico is controlling in the instant proceeding. Whether or not the reason
for the dismissal of the first indictment amounted to good cause is discretionary with the
trial court. Thus, we are reluctant to disturb the trial court's ruling on this issue because
the defendant's trial on the second indictment was set within three-terms of the first
indictment.See footnote 6
The one-term rule is not a right of constitutional dimension, but rather
provides a personal right to the defendant to be tried more expeditiously than the
Constitution requires. State ex rel. Workman v. Fury, 168 W. Va. 218, 221, 283 S.E.2d
851, 853 (1981). We further explained in Syllabus point 1 of State ex rel. Shorter v. Hey
Whereas W. Va. Code § 62-3-1, provides a defendant with a statutory right to a trial in the term of his indictment, it is W. Va. Code § 62-3-21, rather than W. Va. Code § 62-3-1, which is the legislative adoption or declaration of what ordinarily constitutes a speedy trial within the meaning of U.S. Const., amend. VI and W. Va. Const., art. III, § 14.
170 W. Va. 249, 294 S.E.2d 51.
Consequently, our review of a challenge to a decision under the one-term rule is less
stringent than that of a challenge to a three-term rule decision. This Court noted in Good
v. Handlan, 176 W. Va. 145, 150, 342 S.E.2d 111, 115 (1986), that when there is a
violation of the three-term rule a trial court is obligated to dismiss the indictment, but
there is more flexibility in the remedy for a one-term rule violation than for a three-term
Writ Denied .
Every person charged by presentment or indictment with a felony or misdemeanor, and remanded to a court of competent jurisdiction for trial, shall be forever discharged from prosecution for the offense, if there be three regular terms of such court, after the presentment is made or the indictment is found against him, without a trial, unless the failure to try him was caused by his insanity; or by the witnesses for the State being enticed or kept away, or prevented from attending by sickness or inevitable accident; or by a continuance granted on the motion of the accused; or by reason of his escaping from jail, or failing to appear according to his recognizance, or of the inability of the jury to agree in their verdict.