Davis, Chief Justice:
In this action in prohibition, petitioner, the Prosecuting Attorney for Berkeley County, seeks to prevent the enforcement of the October 31, 2005, order of the Circuit Court of Berkeley County allowing a defendant, who has been arraigned on criminal charges in West Virginia and released on bail therefor, to waive extradition proceedings and be released to the Commonwealth of Virginia, prior to the conclusion of the criminal proceedings against him in West Virginia. After listening to the oral arguments of the parties, carefully reviewing the legal memoranda of counsel, and considering the pertinent legal authorities, we grant the writ as moulded.
Earlier, on September 8, 2005, Mr. VanMetre had been indicted in the Commonwealth of Virginia for the felony offenses of Grand Larceny and Robbery. (See footnote 3) These alleged crimes are unrelated to the crime charged in West Virginia. (See footnote 4) The Commonwealth of Virginia filed a fugitive warrant with respect to the aforementioned indictments. Mr. VanMetre was picked up on the fugitive warrant and placed in the Eastern Regional Jail to await extradition proceedings. (See footnote 5) Mr. VanMetre indicated his desire to waive extradition proceedings and a hearing on the matter was scheduled in the circuit court for October 31, 2005. At the hearing, the Prosecuting Attorney for Berkeley County (hereinafter referred to as the Prosecuting Attorney), the Petitioner in this matter, opposed permitting Mr. VanMetre to waive proceedings related to his extradition to the Commonwealth of Virginia during the pendency of the criminal proceedings against him in West Virginia. The Prosecuting Attorney argued that Mr. VanMetre's speedy trial rights under W. Va. Code § 62-3-21 (1959) (Repl. Vol. 2005) would be placed at risk if the State voluntarily relinquished him to another jurisdiction. The Prosecuting Attorney further argued that she should have discretion, under W. Va. Code § 5-1-9(j) (2002) (Repl. Vol. 2002), (See footnote 6) to prevent extradition before a defendant has been tried and discharged or convicted and punished in this State. After hearing the parties arguments, the circuit court ruled that Mr. VanMetre would be permitted to waive extradition proceedings on the Virginia charges. The circuit court explained that if the defendant waives extradition, the State may preserve their [sic] ability to prosecute the defendant by filing a detainer with Virginia and that otherwise the defendant is left accruing 'dead time'[ (See footnote 7) ] in West Virginia's jail on the Virginia fugitive warrant. (Footnote added). However, the circuit court granted the Prosecuting Attorney's request to stay its ruling to allow the instant petition for writ of prohibition to be filed in this Court. We granted a rule to show cause and now grant the writ as moulded. (See footnote 8)
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.Syllabus point 2, State ex rel. Peacher v. Sencindiver, 160 W. Va. 314, 233 S.E.2d 425 (1977). The Prosecuting Attorney argues that the circuit court exceeded its legitimate powers by permitting an arraigned criminal defendant awaiting felony trial to waive extradition to a foreign jurisdiction over the State's objection. In this regard, we have held that
[i]n determining whether to entertain and issue the writ of prohibition for cases not involving an absence of jurisdiction but only where it is claimed that the lower tribunal exceeded its legitimate powers, this Court will examine five factors: (1) whether the party seeking the writ has no other adequate means, such as direct appeal, to obtain the desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not correctable on appeal; (3) whether the lower tribunal's order is clearly erroneous as a matter of law; (4) whether the lower tribunal's order is an oft repeated error or manifests persistent disregard for either procedural or substantive law; and (5) whether the lower tribunal's order raises new and important problems or issues of law of first impression. These factors are general guidelines that serve as a useful starting point for determining whether a discretionary writ of prohibition should issue. Although all five factors need not be satisfied, it is clear that the third factor, the existence of clear error as a matter of law, should be given substantial weight.
Syllabus point 4, State ex rel. Hoover v. Berger, 199 W. Va. 12, 483 S.E.2d 12 (1996). Furthermore,
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 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). With these principles in mind, we proceed to address the issues herein raised.
See Paley v. Bieluch, 785 So. 2d 692, 695 (Fla. Dist. Ct. App. 2001) (Petitioner's allegations indicate that for most of the time in question, he was held on local charges as well as the fugitive warrant. There is no indication that he has been held in excess of the statutory period solely on the fugitive warrant. (emphasis added)); In re Lane, 17 Kan. App. 2d 476, 479, 845 P.2d 708, 710 (1992) ([T]he district court did not err in allowing Lane to be detained for more than 90 days because the filing of the local charges tolled the running of the 90-day period for so long as he was held on those charges. (emphasis added)); State ex rel. Ehlers v. Endicott, 188 Wis. 2d 57, 66, 523 N.W.2d 189, 193 (1994) ([T]he thirty-day and optional sixty-day extension periods for detention only pertain to those fugitives who are not already in custody pending other charges or serving other sentences. . . . Ehlers was already incarcerated, serving a sentence for the conviction of another crime, and therefore the time limits are inapplicable. (emphasis added) (internal citation omitted)). In this case, Mr. VanMetre is being held only on the fugitive warrant, having posted bail with respect to the criminal charges against him in West Virginia. Thus the ninety-day period is not tolled.
Moreover, the time frames set out in W. Va. Code §§ 5-1-9(f) and 5-1-9(h) clearly establish the maximum allowable time a defendant may be held on a fugitive warrant and leave no room for enlargement. For example, W. Va. Code § 5-1-9(f) provides for committing a fugitive to custody for a time not exceeding thirty days . . . (emphasis added). Likewise, the accused may be recommitted to custody under W. Va. Code § 5-1-9(h) for a further period not to exceed sixty days . . . (emphasis added). Under the plain language of these statutes, there is absolutely no authority to hold a defendant on a fugitive warrant for a period that exceeds ninety days.
'Where the language of a statute is free from ambiguity, its plain meaning is to be accepted and applied without resort to interpretation.' Syl. Pt. 2, Crockett v. Andrews, 153 W. Va. 714, 172 S.E.2d 384 (1970). Syllabus Point 4, Syncor International Corp. v. Palmer, 208 W. Va. 658, 542 S.E.2d 479 (2001).
Syllabus point 4, Charter Communs. VI, PLLC v. Community Antenna Serv., Inc., 211 W. Va. 71, 561 S.E.2d 793 (2002).
Finally, we note that this Court, addressing W. Va. Code § 5-1-9 in a slightly different context, has held that
[u]nder the provisions of W. Va. Code, 5-1-9, a fugitive incarcerated under a fugitive warrant in this State is entitled to release from custody after ninety days unless the Governor's extradition warrant has been issued and executed. However, upon his release such person remains a fugitive subject to rearrest on the Governor's warrant if he remains within this State. Syllabus, Brightman v. Withrow, 172 W. Va. 235, 304 S.E.2d 688 (1983).
Syl. pt. 1, State ex rel. Moore v. Conrad, 179 W. Va. 577, 371
S.E.2d 74 (1988) (emphasis added). Other jurisdictions that have adopted the
Uniform Extradition Act (See
footnote 13) have similarly concluded and/or observed that, under
the Act, ninety days is the maximum amount of time
a defendant may be held on a fugitive warrant. See, e.g., Orton v.
State 431 So. 2d 236, 237 (Fla. Dist. Ct. App. 1983) (explaining
that Our study leads us to the conclusion that the statute merely requires
discharge of the accused from custody or bond after the expiration of the [aggregate
ninety-day] statutory time period.); State v. Holliman, 247 Mont.
365, 366, 805 P.2d 52, 52 (Mont. 1991) (recognizing prior holding stating,
in part, that time limits in section 46-30-302 and -304 refer . . . to
the length of detention permitted before an accused person must be released
from custody in the asylum state. (emphasis added) (citation omited)); Bell
v. Janing, 188 Neb. 690, 691 & 692, 199 N.W.2d 24, 24 & 25 (1972)
(finding that [u]nder sections 29--743 and 29--745, R.R.S.1943, of the
Uniform Criminal Extradition Act, the appellant became entitled to release
from custody on August 21, 1971, the date on which 90 days had elapsed which
is the limit of legal detention under the statute[,] and further commenting
that [i]t is clear that the cited sections of the Uniform Criminal Extradition
Act are to prevent an unreasonable lengthy period of confinement of fugitives
pending consummation of extradition proceedings by the demanding state. It
is clear that they are entitled to the writ of habeas corpus to enforce the
provisions of these sections of the statute.); People ex rel. Brandolino
v. Hastings, 72 A.D.2d 821, 821, 421 N.Y.S.2d 893, 894 (1979) (stating
that CPL 570.36 and 570.40 are primarily designed to insure that an accused
is not indefinitely detained in the absence of State action toward extradition.
Thus, an accused who has not been arrested pursuant to a Governor's warrant
within 90 days of his detention, may demand to be released. However, CPL 570.36
and CPL 570.40 do not
immunize the accused from extradition . . . . (citations
omitted)); Carter v. State, 708 P.2d 1097, 1100 (Okla. 1985) (The
Florida Court of Appeals, in construing the Uniform Criminal Extradition Act
as adopted in that state, interpreted the thirty and sixty day provisions contained
in our sections 1141.15 and 1141.17 to require that the accused be discharged
from custody or bond upon the expiration of the 90 day period, if at the end
of that time the accused has not been arrested on the Governor's warrant.
We believe the Florida interpretation is correct and applicable to the law
as adopted in Oklahoma. (emphasis added) (footnotes omitted)); Commonwealth
ex rel. Coffman v. Aytch, 238 Pa. Super. 584, 587, 361 A.2d 652, 654
(1976) (explaining that the production of a Governor's Warrant was required
within a maximum of 90 days of November 20, 1973, the date the Illinois detainer
was lodged, and there was no authority to hold appellant beyond the following
90 day period. (internal citations omitted)); In re James H. Hval,
148 Vt. 544, 549, 537 A.2d 135, 139 (1987) (commenting that [a]lmost
all states in the country, including the three states involved in this case,
have adopted the Uniform Criminal Extradition Act with its provision that 90
days is a reasonable limit to hold a person while awaiting a Governor's warrant.
When the policies among states are identical, we must be careful that the act
of crossing a state boundary does not create different rights, undermining
the expressed policies of all the states.); State ex rel. Lykins v.
Steinhorst, 197 Wis. 2d 875, 889, 541 N.W.2d 234, 240 (Wis. Ct. App.
1995) (observing that [u]nder other provisions of the Uniform Criminal
Extradition Act, the asylum state may make a custodial arrest, and the individual
may be maintained in
custody by court order for up to ninety days to allow for service of
the governor's warrant. Section 976.03(13), (14), (15) and (17).).
Based upon the foregoing, we hold that a defendant incarcerated under a fugitive warrant in this State may not be held solely on that warrant for a period exceeding the aggregate of ninety days as provided for under W. Va. Code §§ 5-1-9(f) and (h) (2002) (Repl. Vol. 2002). Having determined that the Prosecuting Attorney cannot seek to hold Mr. VanMetre on the fugitive warrant beyond the period of ninety days, we will now consider whether the Prosecuting Attorney may prevent Mr. VanMetre from waiving extradition proceedings.
a criminal prosecution has been instituted against the person under the laws
of this state and is still pending, the governor, in his or her discretion,
either may surrender him or her on demand of the executive authority of another
state or hold him or her until he or she has been tried and discharged or convicted
and punished in this state . . . .(Emphasis added). (See
footnote 15) The foregoing provision of W. Va. Code § 5-1-9(j)
plainly grants authority solely to the governor to either surrender or
hold a criminal defendant who has been demanded by the executive authority of
another state. When a statute is clear and unambiguous and the legislative
intent is plain, the statute should not be interpreted by the courts, and in
such case it is the duty of the courts not to construe but to apply the statute. Syl.
pt. 5, State v. General Daniel Morgan Post No. 548, V.F.W., 144 W. Va.
137, 107 S.E.2d 353 (1959). In this case, however, Mr. VanMetre seeks to waive
extradition proceedings before a demand by the executive authority of another
state has been made. Therefore, W. Va. Code § 5-1-9(j) is not triggered.
The Prosecuting Attorney suggests that, under these circumstances, prosecuting
attorneys should nevertheless be permitted to rely on this section of the West
Virginia Code to prevent a defendant from waiving extradition prior to the conclusion
of criminal proceedings on the charges against him or her in West Virginia. (See
footnote 16) We
find no support for granting such authority in W. Va. Code § 5-1-9(j), particularly insofar as W. Va. Code § 5-1-9(j) specifically grants authority only to the governor. There is, however, another statute that does address the instant question.
W. Va. Code § 5-1-11 (1999) (Repl. Vol. 2002) expressly addresses the waiver of extradition proceedings. Specifically, W. Va. Code § 5-1-11(b) directs that
person arrested in this state charged with having committed any crime in another
state or alleged to have escaped from confinement, or broken the terms of his
bail, probation or parole may waive the issuance and service of the warrant
provided for in subsections (a) and (d), section eight [§ 5-1-8(a) and (d)]
of this article, and all other procedure incidental to extradition . . . .
(Emphasis added). (See footnote 17) The statute goes on to describe the procedure for accepting a waiver and
Provided, That nothing in
this subdivision shall be deemed to limit the rights of the accused person to
return voluntarily and without formality to the demanding state, nor shall
this waiver procedure be deemed to be an exclusive procedure or to limit the
powers, rights, or duties of the officers of the demanding state or of this state.
(Emphasis added). Thus, the statute makes clear that the Legislature's intent
is to allow individuals subject to the extradition process to waive that process,
and furthermore, to not limit their right to voluntarily submit to extradition
to a demanding state. This would appear to resolve the instant case in Mr.
VanMetre's favor. However, this provision of the statute
does not address waiver by an individual who has been charged with committing
a crime in West Virginia. To see what the Legislature has to say about extradition
in the context of a person who is charged with committing a crime in West Virginia,
we look to another provision of the statute, namely W. Va. Code § 5-1-11(d).
Unlike W. Va. Code § 5-1-11(b), W. Va. Code § 5-1-11(d) expressly addresses the impact of extradition when a defendant has been accused of committing a crime in West Virginia. In this respect, the Legislature has stated
(d) Nothing in this article contained shall be deemed to constitute a waiver by this state of its right, power or privilege to try such demanded person for an offense committed within this state, or of its right, power or privilege to regain custody of such person by extradition proceedings or otherwise for the purpose of trial, sentence or punishment for any offense committed within this state, nor shall any proceedings had under this article which result in, or fail to result in, extradition, be deemed a waiver by this state of any of its rights, privileges or jurisdiction in any way whatsoever.
W. Va. Code § 5-1-11(d) (emphasis added). As previously noted, [w]hen
a statute is clear and unambiguous and the legislative intent is plain, the
statute should not be interpreted by the courts, and in such case it is the
duty of the courts not to construe but to apply the statute. Syl. pt.
5, State v. General Daniel Morgan Post No. 548, V.F.W., 144 W. Va.
137, 107 S.E.2d 353. The language of W. Va. Code § 5-1-11(d) plainly
expresses the intent of the Legislature that a waiver of extradition proceedings
shall not deprive the State of West Virginia of its right, power or privilege
to try [a] demanded person for an offense committed
within this state[.] The fact that the statute goes on to utilize the
disjunctive or and then offer the alternative of regaining custody
of a demanded person for the purpose of trial, sentence or punishment, clearly
demonstrates that the former portion of the statute refers to trying a demanded
person before he or she is permitted to leave the state. We have customarily
stated that where the disjunctive 'or' is used, it ordinarily connotes an alternative
between the two clauses it connects. State v. Rummer, 189 W. Va.
369, 377, 432 S.E.2d 39, 47 (1993) (internal quotations and citations omitted).
We next consider who is the proper official to protect the State's interests where a West Virginia criminal defendant seeks to waive extradition proceedings. We are aware that extradition is generally a function of the executive office of the governor. See 1 Franklin D. Cleckley, Handbook on West Virginia Criminal Procedure I-190 (2d ed 2002) (Since the right to demand extradition and the correlative duty to extradite rest solely with the executives of the demanding and asylum states, judicial intervention is limited.). See also State ex rel. Drescher v. Hedrick, 180 W. Va. 35, 38, 375 S.E.2d 213, 216 (1988) (Since the right to demand extradition and the correlative duty to extradite rest solely with the executives of the demanding and asylum states, judicial intervention is limited. Drew v. Thaw, 235 U.S. 432, 35 S. Ct. 137, 59 L. Ed. 302 (1914); Munsey v. Clough, 196 U.S. 364, 25 S. Ct. 282, 49 L. Ed. 515 (1905).). (See footnote 18) However, it is important to note at this juncture that a prosecuting attorney is an officer of the executive branch of government. See, e.g., State ex rel. Ginsberg v. Naum, 173 W. Va. 510, 512, 318 S.E.2d 454, 456 (1984) (a prosecutor, as part of the executive department, must enforce . . . criminal laws. (emphasis added) (citing State ex rel. Hamstead v. Dostert, 173 W. Va. 133, 313 S.E.2d 409 (1984))); Syl. pt. 7, State ex rel. Skinner v. Dostert, 166 W.Va. 743, 278 S.E.2d 624 (1981) (The prosecutor, like any other executive officer, must have sound reasons for his actions. (emphasis added)); State ex rel. Miller v. Smith, 168 W. Va. 745, 755-56, 285 S.E.2d 500, 506 (1981) (Prosecuting attorneys are executive officers, see W. Va. Const. art. VII, § 1; Code 5-3-2 (1979 Replacement Vol.), § 7-4-1, . . . .(footnote omitted)). Thus, the fact that the governor and prosecuting attorneys are both executive officers of the state is important in the context of our extradition statutes.
Although W. Va. Code § 5-1-9(j) grants authority only to the governor, W. Va. Code § 5-1-11(b) prohibits a waiver of extradition proceedings from limiting the powers, rights or duties of officers . . . of this state. The reference to officers . . . of this state undoubtedly refers to a broader range of officials than merely the governor, and would include prosecuting attorneys. As an officer of this state, a prosecuting attorney possesses both the right and duty to prosecute persons suspected of committing crimes. In this respect, this Court has declared that [t]he prosecuting attorney is the constitutional officer charged with the responsibility of instituting prosecutions and securing convictions on behalf of the State of those who violate the criminal law. W. Va. Const. art. 9,[ (See footnote 19) ] § 1; W. Va. Code § 7-4- 1 [(1971) (Repl. Vol. 2003)][ (See footnote 20) ] State ex rel. Skinner v. Dostert, 166 W. Va. 743, 750, 278
S.E.2d 624, 630 (footnotes added). This Court has also elaborated that
[a]s criminal offenses are offenses against the State which must be prosecuted in the name of the State . . . the prosecutor, as the officer charged with prosecuting such offenses, has a duty to vindicate the victim's and the public's constitutional right of redress for a criminal invasion of rights. The 'spirit of the law' has long been and it has been long held that 'the public has rights as well as the accused, and one of the first of these is that of redressing or punishing their wrongs.' (Citation omitted).
Manning v. Inge, 169 W. Va. 430, 436, 288 S.E.2d 178, 182 (1982) (emphasis added) (quoting State ex rel. Skinner v. Dostert). Accordingly, we believe that, as an officer of the executive branch, a prosecuting attorney is the proper official to ensure that an individual's waiver of extradition proceedings does not obstruct the State's right, power or privilege to try the individual. W. Va. Code § 5-1-11(d). Under the provisions of this statute, then, a defendant's right to waive extradition simply may not limit a prosecuting attorney's right and duty to conduct prosecutions against persons suspected of committing crimes within the State of West Virginia.
Finally, we note that the State has a strong interest in prosecuting individuals who have been accused of committing crimes within its boarders prior to allowing them to submit to extradition, and the decision of whether such a defendant may be extradited prior to prosecution in this State should not be left up to the defendant. As the Prosecuting Attorney points out, [t]he question of priority of jurisdiction is one of comity between the respective sovereignties and not one of personal right of the prisoner. Davis v. Rhyne, 181 Kan. 443, ___, 312 P.2d 626, 631 (1957). Though discussing the powers of the governor to refuse a demand for extradition, a New York court long ago wisely reasoned that:
[i]f [a defendant] has committed offenses against the laws of two states, it is not for him [or her] to choose in which state he [or she] shall be held to answer. Naturally he [or she] would always choose that in which the punishment would be the lighter, or the chances of conviction the least. . . . In the very nature of things, it is desirable that the power should rest somewhere in the state to refuse to give up a prisoner until he has satisfied the claims of the state against him, or to waive the enforcement of those claims, and surrender him to another state for the satisfaction of its laws. If such power did not exist, a criminal might easily evade or postpone his just punishment for the gravest of crimes committed in one state by the commission of a crime of much less magnitude in another.
People ex rel. Gallagher v. Hagan, 34 Misc. 85, __, 69 N.Y.S. 475, 477
As the foregoing discussion demonstrates, the Legislature has clearly expressed its intention that, in general, criminal defendants have an unrestricted right to waive extradition proceedings. Nevertheless, the Legislature has also plainly stated that such a
waiver shall not surpass the power, rights or duties of the officers of this state, and shall not constitute a waiver of the State's power or privilege to try the demanded person for crimes committed within this State. Accordingly, we now hold that when a person who has been charged with committing a crime within the State of West Virginia is arrested in this State on a fugitive warrant for crime(s) committed in another state, he or she may waive extradition proceedings. However, upon the election of a county prosecuting attorney to prosecute the defendant for a pending charge in this State prior to his or her extradition to such other jurisdiction, the defendant's waiver of extradition proceedings shall be unenforceable until such time as the defendant has been timely tried and either acquitted or convicted and punished in this state.