State ex rel. Bess v. Hey, 15762

• Decision Date: 25 March 1983
• Docket Number: No. 15762,15762
• Citation: 301 S.E.2d 580,171 W.Va. 624
• Court: West Virginia Supreme Court
• Parties: STATE ex rel. Timothy L. BESS v. Hon. John HEY, Judge, etc., et al.

Page 580

301 S.E.2d 580

171 W.Va. 624

STATE ex rel. Timothy L. BESS v. Hon. John HEY, Judge, etc., et al.

No. 15762.

Supreme Court of Appeals of West Virginia.

March 25, 1983.

Syllabus by the Court

1. "The effects of less gross delays upon a defendant's due process rights must be determined by a trial court by weighing the reasons for delay against the impact of the delay upon the defendant's ability to defend himself." Syllabus point 2, State ex rel. Leonard v. Hey, W.Va., 269 S.E.2d 394 (1980).

2. "The general rule is that where there is a delay between the commission of the crime and the return of the indictment or the arrest of the defendant, the burden rests initially upon the defendant to demonstrate how such delay has prejudiced his case if such delay is not prima facie excessive." Syllabus point 1, State v. Richey, 171 W.Va. 342, 298 S.E.2d 879 (1982).

W. Ronald Denson, Charleston, for relator.

James E. Roark, Pros. Atty., Frances W. McCoy, Asst. Pros. Atty., Charleston, for respondents.

PER CURIAM:

Petitioner Timothy L. Bess, through his petition for a writ of prohibition, seeks to prohibit the State from prosecuting him on charges of unlawful possession and delivery of phenmetrazine and hydromorphone, both Schedule II controlled substances. W.Va.Code, 60A-4-401 (1971). Bess contends that the twenty-month delay between his arrest and indictment requires that the charges against him be dismissed. We disagree and deny the writ.

The record reflects the fact that a twenty-month delay has occurred between the time of Bess' arrest and the time of indictment. Bess cites State ex rel. Leonard v. Hey, W.Va., 269 S.E.2d 394 (1980) as controlling. In Syllabus point 2 of Leonard we held:

"The effects of less gross delays upon a defendant's due process rights must be determined by a trial court by weighing the reasons for delay against the impact of the delay upon the defendant's ability to defend himself." (emphasis added)

We recently elaborated upon this issue in Syllabus point 1 of State v. Richey, 171 W.Va. 342, 298 S.E.2d 879 (1982).

"The general rule is that where there is a delay between the commission of the crime and the return of the indictment or the arrest of the defendant, the burden rests initially upon the defendant to demonstrate how such delay has prejudiced his case if such delay is not prima facie excessive." Syllabus point 1, State v. Richey, 171 W.Va. 342, 298 S.E.2d 879 (1982).

An examination of the record reveals...