State ex rel. Games-Neely v. Sanders, 30359.
| Decision Date | 24 May 2002 |
| Docket Number | No. 30359.,30359. |
| Citation | 565 S.E.2d 419,211 W.Va. 297 |
| Court | West Virginia Supreme Court |
| Parties | STATE of West Virginia ex rel. Pamela Jean GAMES-NEELY, Prosecuting Attorney for Berkeley County, Petitioner, v. Honorable David H. SANDERS, Judge of the Circuit Court of Berkeley County, and David T. Gregory, Respondents |
Pamela Jean Games-Neely, Prosecuting Attorney, Christopher C. Quasebarth, Assistant Prosecuting Attorney, Martinsburg, for the Petitioner.
Homer A. Speaker, John Adams, Assistant Public Defenders, Martinsburg, for the Respondent, David T. Gregory. ALBRIGHT, Justice.
The State of West Virginia (hereinafter "State") presents a writ of prohibition seeking to prevent the Honorable David H. Sanders of the Circuit Court of Berkeley County from sua sponte reversing that court's prior order denying the motion of Mr. David T. Gregory (hereinafter "defendant") to sever misdemeanor charges which had previously been joined with a felony charge and to remand those charges to magistrate court. Upon thorough review of this matter, this Court finds that the lower court did not abuse its discretion in severing the misdemeanor charges and remanding them for trial in magistrate court. The requested writ of prohibition is consequently denied.
Subsequent to a July 25, 2000, motor vehicle incident in which the defendant was allegedly operating a motor vehicle while under the influence, the defendant was charged with six misdemeanors and one felony charge initiated in magistrate court.1 On August 15, 2000, the State moved to dismiss the misdemeanors based upon the defendant's decision not to waive the misdemeanors up with the felony.
On May 24, 2001, the defendant moved to remand the misdemeanors to magistrate court based upon this Court's decision in State v. Bruffey, 207 W.Va. 267, 531 S.E.2d 332 (2000).2 The lower court denied that motion, with no written order. On May 31, 2001, the defendant filed a petition for a writ of mandamus with this Court, and this Court granted a rule to show cause. Prior to any determination by this Court, the defendant moved to dismiss the petition.
The lower court subsequently reversed itself sua sponte and granted the defendant's motion to remand the misdemeanors to magistrate court. The State seeks a writ of prohibition, contending that the lower court abused its discretion by reversing itself sua sponte and granting the defendant's motion to remand the misdemeanors to magistrate court. The State argues that such action was inconsistent with the mandatory joinder requirement of West Virginia Rule of Criminal Procedure 8(a)(2).
This Court explained the utilization of a writ of prohibition as follows in syllabus point one of State ex rel. Charles Town General Hosp. v. Sanders, 210 W.Va. 118, 556 S.E.2d 85 (2001):
" Syllabus point 1, State ex rel. Charleston Mail Association v. Ranson, 200 W.Va. 5, 488 S.E.2d 5 (1997).
In determining whether prohibitory relief is necessary in a particular situation, this Court has employed the analysis explained in syllabus point four of State ex rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12 (1996), as follows:
In 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.
Based upon this Court's determination that the State has no other adequate means to obtain the desired relief and that this issue is not one which would be correctable on appeal, this Court has entertained this petition for a writ of prohibition.
The defendant in the present case was charged with multiple offenses arising from his alleged criminal activity occurring on July 25, 2000. Consistent with Rule 8 of the West Virginia Rules of Criminal Procedure,3 the one felony and six misdemeanors were joined in one indictment. Rule 8 permits a single trial on similar offenses or multiple offenses arising from the same transaction and spares the defendant the time and expense of multiple trials relating to similar occurrences. See State ex rel. Watson v. Ferguson, 166 W.Va. 337, 274 S.E.2d 440 (1980) ().
In syllabus point three of State ex rel. Forbes v. Canady, 197 W.Va. 37, 475 S.E.2d 37 (1996), this Court explained:
Rule 8(a) of the West Virginia Rules of Criminal Procedure compels the prosecuting attorney to charge in the same charging document all offenses based on the same act or transaction, or on two or more acts or transactions, connected together or constituting parts of a common scheme or plan, whether felonies, misdemeanors or both, provided that the offenses occurred in the same jurisdiction, and the prosecuting attorney knew or should have known of all the offenses, or had an opportunity to present all offenses prior to the time that jeopardy attaches in any one of the offenses.
Other states have similar or identical rules and have routinely reasoned that Rule 8 "is not inflexible and its protection may be waived." Commonwealth v. Splain, 242 Pa.Super. 503, 364 A.2d 384, 386 (1976); see also Commonwealth v. Green, 232 Pa.Super. 134, 335 A.2d 493 (1975).
While the State initially has the duty to join related offenses pursuant to Rule 8, a severance of the offenses may thereafter be requested. In State v. Hottle, 197 W.Va. 529, 476 S.E.2d 200 (1996), this Court explained that a determination of the appropriateness of a severance is discretionary with the ruling court. This Court stated:
Even when joinder is proper under Rule 8, the circuit court may order separate trials under Rule 14(a) (1981) of the W.Va. R.Crim.P. on the grounds that such joinder is prejudicial to the defendant. The question of whether to grant severance rests in the sound discretion of the circuit court.
Id. at 535-36, 476 S.E.2d at 206-07 (footnote omitted).4 In syllabus point six of State v. Mitter, 168 W.Va. 531, 285 S.E.2d 376 (1981), this Court explained:
The joinder of related offenses to meet possible variance in the evidence is not ordinarily subject to a severance motion. In those other situations where there has been either a joinder of separate offenses in the same indictment or the consolidation of separate indictments for the purpose of holding a single trial, the question of whether to grant a motion for severance rests in the sound discretion of the trial court.
See also State v. McGinnis, 193 W.Va. at 161-62 n. 20, 455 S.E.2d at 530-31 n. 20. In Mitter, this Court further explained as follows:
Courts that have addressed the problem have recognized that joinder or consolidation may prejudice the defendant because the jury may tend to cumulate the evidence of the various offenses and convict the defendant on all offenses charged on the theory he is a bad individual rather than weigh the evidence separately on each offense. From the defense standpoint, trial on multiple offenses may make it difficult to establish separate defenses to individual charges. Furthermore, it may inhibit the defendant's ability to testify on his own behalf if he wishes to testify about some of the charges but not about others. Cross v. United States, 335 F.2d 987 (D.C.App.1964); Drew v. United States, 331 F.2d 85 (D.C.App.1964); 1 Wright, Federal Practice and Procedure § 222 (1969). See also, Meade v. State, 85 So.2d 613 (Fla.1956); Hadjis v. Iowa Dist. Court of Linn County, 275 N.W.2d 763 (Iowa 1979); Commonwealth v. Slavski, 245 Mass. 405, 140 N.E. 465 (1923); Commonwealth v. Tracey, 137 Pa.Super. 221, 8 A.2d 622 (1939)[.]
The defendant in the present case relied exclusively upon West Virginia Code § 50-5-7 and this Court's decision in Bruffey to support his request for remand of the misdemeanor counts to magistrate court. In syllabus point six of Bruffey, this Court stated:
A defendant's right to trial in magistrate court under West Virginia Code § 50-5-7 (1994) attaches when a criminal proceeding has been initiated in that forum. In situations where a plea of not guilty is entered in answer to a traffic or other citation, a criminal proceeding is initiated under the Rules of Criminal Procedure for the Magistrate Courts of West Virginia, not with the filing of the citation, but when a written and verified complaint has...
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