State ex rel. Holstein v. Casey

Decision Date11 March 1980
Docket NumberNo. 14743,14743
CourtWest Virginia Supreme Court
PartiesSTATE ex rel. Calbert V. HOLSTEIN v. The Hon. Patrick CASEY, Judge, etc., et al.

Syllabus by the Court

1. Legislatively established parameters of West Virginia constitutional speedy trial rights, W.Va.Const. art. III, § 14, are set out in W.Va.Code, 62-3-1 and 62-3-21. W.Va.Code, 62-3-1 mandates that a criminal defendant be tried in the term during which he is indicted unless good cause is shown for a continuance. W.Va.Code, 62-3-21 requires that (even if good cause is shown and trial is properly delayed beyond the indictment term) trial must commence within three terms after the indictment term unless delayed for the specific reasons stated in the statute.

2. Failure by the state to abide by W.Va.Code, 62-3-1 and 62-3-21 bars prosecution of a criminal defendant.

3. This decision shall have no retroactive application.

James M. Cagle, Charleston, for relator.

Chauncey H. Browning, Jr., Atty. Gen., David P. Cleek, Asst. Atty. Gen., Charleston, for respondents.

HARSHBARGER, Justice:

Calbert V. Holstein seeks a writ against the circuit court and prosecuting attorney of Kanawha County to prohibit them from prosecuting him, claiming that he has been denied his right to a speedy trial accorded by W.Va.Const. art. III, § 14 1, U.S.Const. Amend. VI, and W.Va.Code, 62-3-1. We need not discuss the federal constitutional issue because our state constitution and statute are dispositive of the matter.

Relator was arrested April 12, 1978 for stealing a tractor. After three continuances he appeared for preliminary hearing in magistrate court in August, 1978, where the charge was dismissed because the state failed to prosecute. Holstein and another person were later indicted by the May term, 1979, grand jury. At a pre-trial conference on August 23, 1979 at which no judge was present but which was apparently attended by defendant, his counsel, and a prosecutor, a court secretary assigned January 9, 1980 as the trial date. Then on November 29, 1979 Holstein moved the trial court to dismiss the charge because he had been denied his statutory right to a trial in the term of the indictment and his constitutional speedy trial right, and also moved for a separate trial from his co-indictee. He was granted the motion for separate trial, but not his motion to dismiss. There are no other orders or motions in the record.

Code, 62-3-1, provides in relevant part that "(w)hen an indictment is found in any county, against a person for a felony or misdemeanor, the accused, if in custody, or if he appear in discharge of his recognizance, or voluntarily, shall, unless good cause be shown for a continuance, be tried at the same term." 2 (Emphasis added.)

The precursors to Code, 62-3-1, are Code of Virginia 1860, c. 208 § 2, and Code of West Virginia 1868, Chapter 159, Section 1, with language identical to our 62-3-1 except that they applied only to felony indictments. The first two cases mentioning the old statute, State v. Swain, 81 W.Va. 278, 94 S.E. 142 (1917) and State v. Jones, 84 W.Va. 85, 99 S.E. 271 (1919), were brought by defendants who were refused continuances by trial courts despite allegations that they had good cause. Swain agreed with a trial court's refusal to grant a second continuance. In Jones, supra at 84 W.Va. 89, 99 S.E. 271, the court implied a relationship between the West Virginia constitutional right to a speedy trial and Code, 159-1, although the statute was called "(o)ur statute governing the granting of continuances in criminal actions . . . ." Id., 84 W.Va. at 87, 99 S.E. at 271.

For although the constitutional provision (Art. 3, § 14, Const.) requires that "trials of crimes, and misdemeanors * * * shall be * * * without unreasonable delay," and the statutory provision (section 1, ch. 159, Code) specifies that trials for felony shall be had at the same term at which the indictment is found, "unless good cause be shown for a continuance," they are to be regarded as having both a public and a private or personal aspect or bearing. The first concerns the prevention, in criminal cases especially, of unnecessary delay and the securing of prompt and efficient administration of the criminal law. Cremeans v. Com., 104 Va. 860, 52 S.E. 362. The second, the vouchsafing to a person charged with violation of the law of a fair and reasonable opportunity to present all the facts material to his defense against accusations preferred against him, however guilty he may be. State v. Jones, supra 84 W.Va. at 89, 99 S.E. at 272-273.

In State ex rel. Chambers v. Damron, 87 W.Va. 189, 104 S.E. 490 (1920) we recognized a prosecutor's right to the continuance mentioned in the statute. Defendants sought a writ to prevent a trial beyond the term of indictment, after a hearing at which both sides presented evidence upon defendants' motion for a speedy trial 3 and the government's motion. The court refused to sign defendants' bill of exception or an order filing the exception. A petition, here, for mandamus was denied by an evenly divided court (one member was absent).

In State v. Wright, 108 W.Va. 715, 152 S.E. 743 (1930), this Court again acknowledged the relationship between the constitutional speedy trial rule and the statute.

It is true that trials of felonies and misdemeanors shall be without unreasonable delay (Art. 3, Sec. 14, Const.), and that felonies shall be tried at the term at which the indictment is found unless good cause be shown for a continuance. Sec. 1, c. 159, Code. Continuances may be, by motion of the state or the defense, each based on "good cause" therefor. Id., 108 W.Va. at 719, 152 S.E. at 744. See also State v. Lutz, 88 W.Va. 502, 107 S.E. 187 (1921).

Our more recent decisions on 62-3-1 also consider the propriety of good cause determinations made by trial courts in granting continuances to the state. State v. Grimmer, W.Va., 251 S.E.2d 780, 787 (1979); State v. Alexander, W.Va., 245 S.E.2d 633 (1978). There is no case in West Virginia which even hints that there can be a delay of trial beyond the term of indictment without good cause shown.

Determination of what is good cause is in the sound discretion of the trial court. Grimmer, supra at 787. It may grant a continuance at the request of either the prosecutor or the defense. However, it has been our position, clearly discernable from the statutory language, that a continuance may not be granted pro forma, but must be requested by a party and the trial court must rule on it. If there is no motion and ruling, trial in the term when the indictment issued is required. This record shows no such motion or ruling.

We have never been required to decide what remedy is appropriate for denial of the right granted by this section. However, Code, 62-3-21 4, commonly called the "three-term rule", provides specifically for discharge from prosecution of a defendant whom the state has failed to try within three terms of court following the term of indictment. 5 Section 21 has been called the legislative declaration of what constitutes a speedy trial within the meaning of Article III, Section 14 of the state constitution. State v. Lacy, W.Va., 232 S.E.2d 519 (1977).

The state argues that 62-3-1 conflicts with 62-3-21, and that if a defendant is discharged from prosecution under Section 1, Section 21 is meaningless. We find that Sections 1 and 21 can be read together without the conflict the government perceives. The legislature in Section 1 has mandated that a defendant be tried in the same term as his indictment unless good cause is shown for a continuance. Even if good cause is shown, and the trial is properly delayed beyond that term, Section 21 requires that the trial commence within the next three terms or the defendant must be forever discharged from prosecution. 6 Thus the legislature has carefully and specifically set post-indictment speedy trial rules.

Code, 62-3-1 does not provide the remedy of discharge in its language, as does 62-3-21; but we know of no lesser relief that would give effect to and maintain respect for the statute. As Justice Powell wrote for the majority in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972):

This is indeed a serious consequence because it means that a defendant who may be guilty of a serious crime will go free, without having been tried. Such a remedy is more serious than an exclusionary rule or a reversal for a new trial, but it is the only possible remedy. Id., 407 U.S. at 522, 92 S.Ct. at 2188. (Emphasis added.)

The federal right to a speedy trial applies equally to the states 7 and Barker's reasoning is also appropriate, not only to the federal remedy for violation of the right but to our own remedy. 8

This State has long followed the minority rule that "it is the duty of the prosecution to provide a trial without unreasonable delay rather than the duty of the accused to demand a speedy trial." State ex rel. Stines v. Locke, W.Va., 220 S.E.2d 443, 446 (1975). 9 Although the concept was originally articulated about 62-3-21, it has also been mentioned regarding 62-3-1. State v. Alexander, supra at 636. Therefore the state must offer defendants speedy trials and failure to do so will result in loss of its right to prosecute.

In its oral argument the government implied that Holstein's attorney waived Holstein's right to a speedy trial as defined in Code, 62-3-1 by failing to object to the date set by the court's secretary. Fundamental rights 10 are not easily waived. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). Courts should "not presume acquiescence in the loss of fundamental rights." Ohio Bell Telephone Co. v. Public Utilities Comm'n, 301 U.S. 292, 307, 57 S.Ct. 724, 731, 81 L.Ed. 1093 (1937). Waiver must be intelligent, knowing and intentional. "Such an approach, by presuming waiver of a fundamental right from...

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  • State ex rel. Porter v. Farrell
    • United States
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    ...to such a significant public health crisis. See generally W. Va. Code § 62-3-21. See also State ex rel. Holstein v. Casey , 164 W. Va. 460, 469, 265 S.E.2d 530, 535 (1980) (Miller, J., dissenting) (" W. Va. Code, 62-3-21, specifies only five grounds which will toll the three-term rule: (1) ......
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    ...trial court, its decision will not be disturbed unless there is a clear showing of abuse of such discretion); State ex rel. Holstein v. Casey, 164 W.Va. 460, 265 S.E.2d 530 (1980) (accord). Of course, discretion is not to be confused with imperiousness. State v. Bush, 163 W.Va. 168, 183, 25......
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