Davis, J., dissenting:
The majority opinion reversed Mr. Palmer's conviction and sentence for third-offense driving while his license was suspended or revoked for driving under the influence. The majority concludes that the indictment was fatally flawed because it failed to articulate that Mr. Palmer's prior convictions involved DUI-related revocations. I believe the indictment in this case was sufficient. Therefore, the conviction and sentence should not have been disturbed. For the reasons set forth below, I respectfully dissent.
Davis, J., dissenting:
For the majority opinion
to find the indictment fatally insufficient, it had to take pertinent language
of the indictment out of context and analyze that language in isolation. In
doing so, the majority opinion concluded that the indictment did not apprise
Mr. Palmer of the basis of the two prior driving offenses. I find the majority's
method of analysis to not only be illogical; but, further use of such an analysis
may result in the invalidation of every indictment issued by a grand jury.
The proper analysis for an indictment is to look at it as a whole. An indictment
is not fatal, where from the whole thereof the meaning is made clear
to a person of ordinary intelligence. Syl. pt. 1, State v. Ruble,
119 W. Va. 356, 193 S.E. 567 (1937).
The indictment in this case
was sufficient so as not to even require Mr. Palmer to file a bill of particulars.
(See footnote 1)
In making my analysis of the indictment in this case, I do so with the
understanding that an [a]ssessment of the facial sufficiency of an indictment
is limited to its 'four corners[.]' Syl. pt. 2, in part, State v. Wallace,
205 W. Va. 155, 517 S.E.2d 20 (1999).
The pertinent language of
the statute under which Mr. Palmer was indicted, W. Va. Code § 17B-4-3(b),
Any 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 revoked for driving under the influence of alcohol . . . is . . . for the third or any subsequent offense . . . guilty of a felony[.]
Under the language of this statute, at a minimum, an indictment must allege (1) a person, (2) driving, (3) while his/her license was revoked, (4) for DUI, (5) on two or more previous occasions.
In reading the four corners of the indictment in this case, it provides that Mr. Palmer was being charged with driving a motor vehicle at a time when his privilege or driver's license to operate a motor vehicle had been lawfully revoked for driving under the influence of alcohol[.] The indictment then sets out the dates and courts where the two prior DUI convictions occurred. (See footnote 2) Our cases have made clear that [a]n indictment for a statutory offense is sufficient if, in charging the offense, it substantially follows the language of the statute, fully informs the accused of the particular offense with which he is charged and enables the court to determine the statute on which the charge is based. Syl. pt. 3, State v. Hall, 172 W. Va. 138, 304 S.E.2d 43 (1983). See also Syl. pt. 7, State v. Zain, 207 W. Va. 54, 528 S.E.2d 748 (1999); Syl. pt. 8, State v. Bull, 204 W. Va. 255, 512 S.E.2d 177 (1998).
The majority opinion contends
that the indictment does not state that these previous convictions pertained
to a DUI-related suspension or revocation. However, by placing the language
in its proper context, the indictment does, in fact, apprise Mr. Palmer that
he was being charged with driving while his license was revoked for DUI on
two previous occasions in Berkeley County.
For the reasons stated herein, I respectfully dissent from the majority decision. I am authorized to state that Justice Maynard joins me in this dissenting opinion.