Scott v. McGhee, 16213

• Citation: 174 W.Va. 296,324 S.E.2d 710
• Decision Date: 19 December 1984
• Docket Number: No. 16213,16213
• Court: West Virginia Supreme Court
• Parties: Oliver SCOTT v. John R. McGHEE, Police Judge, etc., & Charles Smith, Prosecuting Attorney, etc.

Page 710

324 S.E.2d 710

174 W.Va. 296

Oliver SCOTT v. John R. McGHEE, Police Judge, etc., & Charles Smith,

Prosecuting Attorney, etc.

No. 16213.

Supreme Court of Appeals of

West Virginia.

Dec. 19, 1984.

Syllabus by the Court

1. In the municipal courts of this State "[u]nder Article III, § 14 of the West Virginia Constitution, the right to a jury trial is accorded in both felonies and misdemeanors when the penalty imposed involves any period of incarceration." Syllabus, Champ v. McGhee, W.Va., 270 S.E.2d 445 (1980).

2. The due process clause of Article III, § 10 of the Constitution of West Virginia prohibits a municipal court judge from dismissing municipal charges solely because the accused has exercised his constitutional right to a jury trial, when the penalty under state law for the same offense carries a heavier jail sentence than provided for by municipal ordinance.

3. Municipalities have the power to summon and compensate jurors, such power being necessarily and fairly implied as an incident to the express powers they have been granted by W.Va.Code, 8-12-5 to arrest, convict, and punish criminal conduct violating municipal ordinances.

Daniel J. Post, Buckhannon, for petitioner.

J.W. Feuchtenberger, City Sol., Bluefield, for respondents.

HARSHBARGER, Justice:

Oliver Scott has invoked this Court's original jurisdiction in prohibition to enforce our decision in Champ v. McGhee, W.Va., 270 S.E.2d 445 (1980), wherein we held in the Syllabus that in municipal court "[u]nder Article III, § 14 of the West Virginia Constitution, the right to a jury trial is accorded in ... misdemeanors when the penalty imposed involves any period of incarceration", and directed "municipal courts to provide the proper machinery for summoning a jury". Id. S.E.2d at 448. He seeks to prohibit any further criminal proceedings against him except by a jury trial in municipal court. ¹ Finding that Scott has a clear legal right to the relief sought, we grant the writ.

On February 8, 1984, Scott was arrested by Bluefield policemen and charged with violating two city ordinances: discharging a firearm ( § 14-40) and carrying a dangerous weapon ( § 14-42). Each municipal offense is punishable by confinement not to exceed thirty days and by a fine not to exceed the amount set under state law for a comparable offense. The same offense under state law for at least one of the offenses carries a penalty of up to one year in jail. ²

On February 22, 1984, he appeared before John R. McGhee, police judge of the City of Bluefield, and demanded a jury trial on the alleged ordinance violations. According to the relator, respondent McGhee refused his demand, ordered that the municipal charges be dismissed and directed respondent Charles Smith, prosecuting attorney for the City of Bluefield, to seek warrants charging Scott with criminal violations under state law. Respondent McGhee denies that he directed the prosecuting attorney to get state warrants, but admits he suggested to the arresting officer that he could secure state warrants upon his dismissal of the municipal charges.

Respondent McGhee, while conceding that criminal defendants are not afforded jury trials in the police court of Bluefield, asserts that he follows the procedures suggested in Champ, supra, i.e., when an offense carries a jail sentence, he either announces that no jail sentence will be imposed upon a guilty finding, or he requests that the accused waive his right to a jury trial. If no penalty is to be imposed, he serves as the fact finder; upon proper waiver of the right to a jury, the criminal case likewise goes forward. When a defendant demands a jury and the offense is of such gravity that respondent believes he might impose a jail sentence, he dismisses the municipal charges and advises the arresting officer to pursue criminal charges under state law. Ordinarily, the dismissal is effected after a one-week continuance granted to permit the arresting officer, if he should so choose, to secure state warrants and to allow the accused to know if and when he will be arrested on state charges. Bond, if any, is returned to the accused immediately upon dismissal and no costs are assessed.

The respondent's practice does to an extent accord with that suggested in Champ, where we stated:

This is not to say that a defendant cannot be sentenced to jail without a jury trial; it is to say, however, that any defendant in jeopardy of incarceration must affirmatively waive his right to a jury in writing before he may be tried and sent to jail without one. Similarly, if the judge signifies in advance of trial that the matter is exclusively administrative, such as a parking fine, and that notwithstanding provisions in the ordinance which permits [sic] a jail sentence, he will under no condition impose one, then the trial may proceed without a jury. Id. S.E.2d at 447.

We also recognized in Champ that municipal police authorities could elect to bring criminal charges under either municipal ordinance or state statute. We stated:

The Court recognizes that frequently serious misdemeanors are handled by the municipal courts; however, there is always concurrent jurisdiction for these offenses in the State magistrate courts. Since the State Constitution provides for a jury of six in magistrate court, and further provides the funds for paying jurors in magistrate court, the city constabularies can elect to secure a State warrant and prosecute in magistrate court where there is appropriate machinery for securing a jury. (Emphasis supplied.) Id. 270 S.E.2d at 448.

We did not hold, however, that a municipal court judge can dismiss a municipal charge solely because a criminal defendant has...