State ex rel. Johnson v. Zakaib, 19827

• Decision Date: 14 December 1990
• Docket Number: No. 19827,19827
• Parties: STATE of West Virginia ex rel. Fredtricia Natalie JOHNSON v. Honorable Paul ZAKAIB, Jr., Judge of the Circuit Court of Kanawha County; and William C. Forbes, Prosecuting Attorney of Kanawha County.
• Court: West Virginia Supreme Court

Page 590

400 S.E.2d 590

184 W.Va. 346

STATE of West Virginia ex rel. Fredtricia Natalie JOHNSON v. Honorable Paul ZAKAIB, Jr., Judge of the Circuit Court of Kanawha County; and William C. Forbes Prosecuting Attorney of Kanawha County.

No. 19827.

Supreme Court of Appeals of

West Virginia.

Dec. 14, 1990.

Syllabus by the Court

1. "W.Va.Code, 50-5-7 (1976), requires that if a defendant is charged by warrant in the magistrate court with an offense over which that court has jurisdiction, he is entitled to a trial on the merits in the magistrate court." Syllabus Point 2, State ex rel. Burdette v. Scott, 163 W.Va. 705, 259 S.E.2d 626 (1979).

2. "Even though W.Va.Code, 50-5-7 (1976), gives exclusive jurisdiction to a magistrate court once the defendant is charged by warrant in that court with an offense within its jurisdiction, this does not mean that the circuit court has no initial jurisdiction over misdemeanor offenses. Concurrent jurisdiction still exists under Article VIII, Section 6 of the West Virginia Constitution, and Code, 51-2-2 (1978)." Syllabus Point 3, State ex rel Burdette v. Scott, 163 W.Va. 705, 259 S.E.2d 626 (1979).

3. "The speedy trial guarantee of W.Va.Const., art. III, § 14 that provides for criminal trials 'without unreasonable delay' is applicable to magistrate courts." Syllabus Point 1, State ex rel. Stiltner v. Harshbarger, 170 W.Va. 739, 296 S.E.2d 861 (1982).

4. "Ordinarily, unless good cause for delay exists, criminal trials in magistrate court should be commenced within one hundred and twenty days of the [execution] of a warrant; however, good cause for delaying a trial beyond one hundred and twenty days must be judged by the standards applicable under W.Va.Code, 62-3-1 [1975] to postponements in circuit court beyond one term of court and, consistent with our rules for circuit courts, absence of good cause cannot be presumed from a silent record." Syllabus Point 2, as modified, State ex rel. Stiltner v. Harshbarger, 170 W.Va. 739, 296 S.E.2d 861 (1982).

5. "Unless one of the reasons specifically set forth in W.Va.Code, 62-3-21 [1959] for postponing criminal trials in circuit court beyond three terms of the circuit court exists, a criminal trial in magistrate court must be commenced within one year of the [execution] of the criminal warrant and lack of good cause for delay beyond one year as defined in Code, 62-3-21 [1959] should be presumed from a silent record." Syllabus Point 3, as modified, State ex rel. Stiltner v. Harshbarger, 170 W.Va. 739, 296 S.E.2d 861 (1982).

6. Where a misdemeanor warrant in a magistrate court is dismissed, further prosecution for the same offense by a new warrant or by an indictment after one year from execution of the original warrant is barred unless the record shows that one or more of the exceptions contained in W.Va.Code, 62-3-21 (1959), applies.

George Castelle, Public Defender, Charleston, for Fredtricia N. Johnson.

Mary Beth Kershner, Asst. Pros. Atty., Charleston, for William C. Forbes.

MILLER, Justice:

In this original proceeding in prohibition, we are asked to prevent the prosecution of the petitioner, Fredtricia Natalie Johnson, in the Circuit Court of Kanawha County on a charge of credit card fraud. The petitioner contends that prosecution in circuit court is barred because proceedings were originally brought in the Magistrate Court of Kanawha County and because of the delay between dismissal of the magistrate court charge and the return of the indictment in circuit court. We agree and grant a moulded writ.

On November 19, 1988, the petitioner was arrested on a misdemeanor charge of aiding and abetting credit card fraud in violation of W.Va.Code, 61-3-24a (1969). ¹ She was released on a $500 bond conditioned upon her appearance for trial in magistrate court on January 3, 1989. On that day, the petitioner appeared, but the State and its witnesses did not. The magistrate dismissed the charge against the petitioner without prejudice. More than a year later, on February 12, 1990, the petitioner was indicted by the Kanawha County grand jury on the same charge. ²

The petitioner contends that under State ex rel. Burdette v. Scott, 163 W.Va. 705, 259 S.E.2d 626 (1979), once the State elects to bring a misdemeanor charge in magistrate court, a defendant has the right to have his case tried there under W.Va.Code, 50-5-7. ³ In Burdette, the defendant was arrested and charged in magistrate court with a misdemeanor offense. After he requested a jury trial in magistrate court, the prosecutor dismissed the charges. Subsequently, the prosecutor presented the case to the grand jury, which indicted the defendant on the same misdemeanor charge. The defendant sought a writ of prohibition from this Court to prevent proceedings in circuit court.

Relying on our earlier case of Harshbarger v. Phipps, 117 W.Va. 134, 184 S.E. 557 (1936), we held in Syllabus Points 2 and 3 of Burdette:

"2. W.Va.Code, 50-5-7 (1976), requires that if a defendant is charged by warrant in the magistrate court with an offense over which that court has jurisdiction, he is entitled to a trial on the merits in the magistrate court.

"3. Even though W.Va.Code, 50-5-7 (1976), gives exclusive jurisdiction to a magistrate court once the defendant is charged by warrant in that court with an offense within its jurisdiction, this does not mean that the circuit court has no initial jurisdiction over misdemeanor offenses. Concurrent jurisdiction still exists under Article VIII, Section 6 of the West Virginia Constitution, and Code, 51-2-2 (1978)."

See also State v. Romaca, 167 W.Va. 119, 278 S.E.2d 891 (1981); State ex rel. Tate v. Bailey, 166 W.Va. 397, 274 S.E.2d 519 (1981). These principles are clearly applicable in this case.

As a second issue, the petitioner contends that the circuit court proceedings were time barred. In State ex rel. Stiltner v. Harshbarger, 170 W.Va. 739, 296 S.E.2d 861 (1982), we formulated several rules regarding speedy trial rights in magistrate court using, by analogy, the provisions of W.Va.Code, 62-3-21 (1959), the legislative speedy trial right in circuit court. In Stiltner, we held in Syllabus Points 1, 2, and 3:

"1. The speedy trial guarantee of W.Va.Const., art. III, § 14 that provides for criminal trials 'without unreasonable delay' is applicable to magistrate courts.

"2. Ordinarily, unless good cause for delay exists, criminal trials in magistrate court should be commenced within one hundred and twenty days of the [execution] of a warrant; however, good cause for delaying a trial beyond one hundred and twenty days must be judged by the standards applicable under W.Va.Code, 62-3-1 [1975] to postponements in circuit court beyond one term of court and, consistent with our rules for circuit courts, absence of good cause cannot be presumed from a silent record.

"3. Unless one of the reasons specifically set forth in W.Va.Code, 62-3-21 [1959] for postponing criminal trials in circuit court beyond three terms of the circuit court exists, a criminal trial in magistrate court must be commenced within one year of the [execution] of the criminal warrant and lack of good cause for delay beyond one year as defined in Code, 62-3-21 [1959] should be presumed from a silent record." ⁴

Clearly, Stiltner was designed to provide much the same speedy trial protection in the magistrate courts as exists in the circuit courts. There are similar speedy trial provisions in both state and federal courts. ⁵ We spoke about the policy reasons behind the speedy trial rule in Good v. Handlan, 176 W.Va. 145, 342 S.E.2d 111 (1986), and concluded with this statement from Barker v. Wingo, 407 U.S. 514, 519-20, 92 S.Ct. 2182, 2186-87, 33 L.Ed.2d 101, 110-111 (1972):

" 'The right to a speedy trial is generally different from any of the other rights enshrined in the Constitution for the protection of the accused. In addition to the general concern that all accused persons be treated according to decent and fair procedures, there is a societal interest in providing a speedy trial which exists separate from, and at times in opposition to, the interests of the accused. The inability of courts to provide a prompt trial has contributed to a large backlog of cases in urban courts which, among other things, enables defendants to negotiate more effectively for pleas of guilty to lesser offenses and otherwise manipulate the system. In addition, persons released on bond for lengthy periods awaiting trial have an opportunity to commit other crimes.... Moreover, the longer an accused is free awaiting trial, the more tempting becomes his opportunity to jump bail and escape. Finally, delay between arrest and punishment may have a detrimental effect on rehabilitation.' (Footnotes omitted)." 176 W.Va. at 151, 342 S.E.2d at 116-17. (Ellipsis in original).

Recently in State ex rel. Webb v. Wilson, 182 W.Va. 538, 390 S.E.2d 9 (1990), we discussed the question of whether the three-term rule could be avoided in a circuit court where an indictment had been dismissed due to irregularities in impaneling the grand jury. A new indictment was procured more than three terms of court after the return of the original indictment. We held that the new indictment could not stand, stating in Syllabus Points 1 and 2:

"1. W.Va.Code, 62-3-21 [1959] limits the state to three unexcused regular terms of court, calculated in accordance with State ex rel. Spadafore v. Fox, 155 W.Va. 674, 186 S.E.2d 833 (1972), in which to bring an accused to trial on the charges contained in an indictment. Once three unexcused regular terms of court have lapsed, and the state has failed to bring the accused to trial on the charges contained in the indictment, the state may not further proceed on the charges contained in the indictment, for, under the plain meaning of the statute, the accused must be 'forever discharged' and the indictment dismissed.

"2. Once an accused is indicted, an entire panoply of constitutional rights...