State ex rel. Erlewine v. Thompson

• Decision Date: 05 June 1973
• Docket Number: No. 13237,13237
• Citation: 156 W.Va. 714,207 S.E.2d 105
• Parties: STATE ex rel. Gary ERLEWINE v. The Honorable James Lee THOMPSON, Judge, etc., et al.
• Court: West Virginia Supreme Court

Page 105

207 S.E.2d 105

156 W.Va. 714

STATE ex rel. Gary ERLEWINE v. The Honorable James Lee THOMPSON, Judge, etc., et al.

No. 13237.

Supreme Court of Appeals of West Virginia.

Submitted April 24, 1973.

Decided June 5, 1973.

Syllabus by the Court

A defendant under indictment is not entitled to count as one of the terms of court essential to his discharge from further prosecution, as provided by Code, 1931, 62--3--21, as amended, any term which occurred at a time the defendant was within the jurisdiction of some other court of record and by reason thereof not available for trial by the court wherein he was indicted.

Frank M. Armada, Poca, for relator.

Chauncey H. Browning, Jr., Atty. Gen., Richard E. Hardison, Deputy Atty. Gen., E. Leslie Hoffman, III, Asst. Atty. Gen., Charleston, for respondents.

CAPLAN, Chief Justice:

In this original proceeding in prohibition the petitioner Gary Erlewine seeks a writ to prohibit James Lee Thompson, Judge of the Circuit Court of Putnam County and Clarence L. Watt, Prosecuting Attorney of said county, from further prosecuting him on a certain indictment returned against him by the grand jury of the Circuit Court of Putnam County. The indictment was returned during the July Term, 1970 and charged the petitioner with the crime of sodomy. Upon the petition, filed by the petitioner, the Answer and Return of the respondents, together with all exhibits and upon briefs and arguments filed and made by counsel for the respective parties this case was submitted for decision.

It is the contention of the petitioner that three terms of the Circuit Court of Putnam County have passed after the return of the indictment during which terms the defendant was not brought to trial; that nothing was done by the petitioner during those terms which would have prevented the state from trying him; and that under the commonly referred to three-term rule as set out in Code, 1931, 62--3--21, as amended, the Circuit Court of Putnam County has lost jurisdiction to further prosecute this case.

By statute there are annually three terms of the Circuit Court of Putnam County. The court convenes on the first Monday of March, the second Monday of July and on the first Monday of November. The record reveals that the indictment was returned during the July Term, 1970; at the November Term, 1970 no trial was afforded the petitioner; at the March Term, 1971 the case was continued on the motion of the defendant; there was no trial of the defendant and no explanation therefor during the July Term, 1971 and November Term, 1971; and that at the March Term, 1972 the case was continued on the motion of the defendant. At the July Term, 1972 the case was called for trial and the defendant filed a Plea in Bar of Prosecution and Motion to Discharge Defendant from Prosecution. On August 3, 1972 a hearing was held on said plea in bar. Upon denial thereof, the court set the trial for August 14, 1972. Thereafter this petition for a writ of prohibition was filed.

It is clear from the record and it has been readily admitted by the respondents that the July and November terms of 1971 during which no trial was afforded the defendant, and for which there was no explanation, were unexcused and counted as two terms under the three-term rule. The November Term, 1970, during which no trial was held is the only term in question in this proceeding. It is essential, therefore, that we consider fully the events that took place during that term.

The record reveals that the petitioner at the time of the alleged offense was a minor under eighteen years of age. By reason thereof, in accordance with the provisions of Code, 1931, 49--5--3, as amended, and upon motion of counsel for the defendant, the case was transferred to the Juvenile Court of Putnam County. An order was entered on September 23, 1970 effecting such transfer. By an order of the juvenile court dated December 9, 1970 the said court stated that pursuant to a hearing held on September 23, 1970 the case should be referred to the circuit court for further disposition and did thereby order that it be remanded to said circuit court.

It is the contention of the petitioner that he not having been afforded a trial during the November Term, 1970 and the state not having been excused from holding such trial by any of the provisions of Code, 1931, 62--3--21, as amended, he should be forever discharged from further prosecution for the charges contained in the July, 1970 indictment. He asserts that this supplies the third unexcused term during which he was not tried, the others admittedly being the July and November terms of 1971.

It is the position of the respondents that the defendant's case having been transferred from the Circuit Court to the Juvenile Court of Putnam County on September 23, 1970 and not having been remanded to the circuit court until December 9, 1970, well within the November term, the defendant was not within the jurisdiction of the circuit court at the beginning of said November term. Basically, say the respondents, the circuit court did not have jurisdiction of the defendant during the November term, 1970. They assert that the state was, therefore, excused under the provision of Code, 1931, 62--3--21, as amended, and cases decided by this court for not bringing the defendant to trial at that term of court.

Where pertinent, Code, 1931, 62--3--21, as amended, provides: '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 * * * indictment is found against him, without a trial, unless the failure to try him was caused by * * *' (reasons not applicable here).

In order for a defendant to be entitled to a discharge from custody for failure of the state to prosecute, as provided in this statute, it is contemplated that he, during the three terms relied upon, must have been subject to the jurisdiction of the court wherein he was to be tried. In the words of the statute, he must have been 'remanded to a court of competent jurisdiction for trial,' and be without fault in delaying the trial before the state can be chargeable with failure to try. If the defendant is outside of the jurisdiction at the beginning of any term upon which he relies, such term is excused and cannot be counted as one of the three terms in which the state failed to prosecute. State ex rel. Smith v. DeBerry, 146 W.Va. 534, 120 S.E.2d 504; State v. Gregory, 143 W.Va. 878, 105 S.E.2d 532.

In the instant case the petitioner was not in a court of competent jurisdiction for trial when the November Term, 1970, began. As the record clearly and undisputedly reveals, he was, at that time, within and subject to the jurisdiction of the juvenile court, a court which was totally without jurisdiction or legal authority to try him for the offense with which he was charged in the indictment. As herein noted, he was transferred to the juvenile court by an order of the circuit court dated September 23, 1970. He was not transferred back to the circuit court, as revealed by a proper order of the juvenile court, until December 9, 1970, a considerable time after the beginning of the November term. During the time that the defendant was within the jurisdiction of the juvenile court, the circuit court could not try him on the indictment.

We are aware of the language of the order of December 9, 1970, which indicates that a hearing on the defendant's transfer back to the circuit court was held on September 23, 1970. While it appears that the judge of the juvenile court should have acted prior to the November term, we cannot say that his action in not deciding the case until December 9, 1970 was unreasonable. A court of record speaks only through its orders and the order in the record of this case shows that the defendant was not available for trial on the indictment when the term in question began. State ex rel. Mynes v. Kessel, 152 W.Va. 37, 158 S.E.2d 896; Powers v. Trent, 129 W.Va. 427, 40 S.E.2d 837; State ex rel. Bika v. Ashworth, 128 W.Va. 1, 35 S.E.2d 351.

For the reasons set forth herein the writ prayed for is denied.

Writ denied.

HADEN, Justice (dissenting):

I respectfully dissent. In my opinion the relator has clearly demonstrated that he was entitled to be forever discharged from prosecution of the criminal charge against him because his case was not called for trial promptly, in violation of the constitutional and statutory provisions securing to him the right to a speedy trial or to a trial without unreasonable delay.

Excluding the term in which he was indicted and remanded to a court of competent jurisdiction for trial, three unexcused terms of court occurred and concluded before the State called Gary Erlewine's case for trial. The majority opinion acknowledges that in two of these terms--the July 1971 and November 1971 terms, the record was silent and the State interposed no legal excuse for its failure to bring the accused to trial. The term of court, the passage of which provides the focus of controversy in this case, is the one occurring at the November term of 1970. It also passed without trial for the accused and without the entry of a court order excusing trial.

As a reason for not bringing the relator to trial in the November 1970 term, the State directs our attention to the fact that after being held for trial on the criminal charge, Erlewine, then under eighteen years of age, was transferred to the jurisdiction of the Juvenile Court of Putnam County pursuant to the mandatory requirements of Code 1931, 49--5--3, as amended. The transfer occurred at the instance of the accused; it was accomplished by order entered during the July term 1970 on September 23, 1970, by the circuit court judge who, as well, persides in the capacity of judge of the juvenile court. On the date of...