State ex rel. McCourt v. Alsop

• Decision Date: 22 February 2007
• Docket Number: No. 33213.,33213.
• Citation: 648 S.E.2d 631
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia ex rel., Keith O'Dell McCOURT, Petitioner, v. The Honorable Jack ALSOP, Judge of the Circuit Court of Webster County, Respondent.

648 S.E.2d 631

STATE of West Virginia ex rel., Keith O'Dell McCOURT, Petitioner, v. The Honorable Jack ALSOP, Judge of the Circuit Court of Webster County, Respondent.

No. 33213.

Supreme Court of Appeals of West Virginia.

Submitted January 23, 2007.

Decided February 22, 2007.

Syllabus by the Court

1. "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." Syl. pt. 4, State ex rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12 (1996).

2. "Pursuant to W. Va.Code § 62-3-21 (1959), when an accused is charged with a felony or misdemeanor and arraigned in a court of competent jurisdiction, if three regular terms of court pass without trial after the presentment or indictment, the accused shall be forever discharged from prosecution for the felony or misdemeanor charged unless the failure to try the accused is caused by one of the exceptions enumerated in the statute." Syl., State v. Carter, 204 W.Va. 491, 513 S.E.2d 718 (1998).

Hunter D. Simmons, Esq., Buckhannon, WV, Attorney for the Petitioner.

Jeffrey L. Hall, Esq., Assistant Prosecuting Attorney, Webster County, Webster Springs, WV, Attorney for the State of West Virginia.

PER CURIAM.

In this original jurisdiction matter, the petitioner, Keith O'Dell McCourt, asks this Court to enter an order prohibiting the Circuit Court of Webster County, West Virginia, from conducting further proceedings in the underlying case wherein he was indicted for sexual assault in the second degree. The petitioner contends that the Circuit Court should have dismissed the indictment and discharged him from further prosecution because the State violated his constitutional right to a speedy trial.¹ Specifically, the petitioner asserts that the State took no action in the case between his indictment in September 1994 and his ultimate arrest and arraignment upon the charge in 2006. The petitioner argues that, therefore, his right under W.Va.Code, 62-3-21 (1959), to be brought to trial in Webster County within three terms of court following the term of indictment was violated. This Court has recognized that statute as this State's legislative declaration of what ordinarily constitutes a speedy trial within the meaning of the federal and State constitutions.

This Court has before it the petition for a writ of prohibition, the response of the State of West Virginia, all matters of record and relevant authorities. Upon careful examination, and as more fully discussed below, this Court concludes, inter alia, that, inasmuch as the petitioner left the jurisdiction of this State and did not appear before the Circuit Court as required during the period in question, no violation of W. Va.Code, 62-3-21 (1959), occurred, and his right to a speedy trial was not violated. Consequently, the Circuit Court is not exceeding its legitimate powers in allowing the case to go forward, and the petitioner's requested relief in prohibition is denied.

I. Factual and Procedural Background

The petitioner allegedly sexually assaulted a male individual at knife point on July 5, 1994, in Webster County, and a warrant for his arrest was issued on July 8, 1994. On September 6, 1994, the petitioner was indicted for the offense by a Webster County grand jury. The indictment alleged that the petitioner committed sexual assault in the second degree, a felony under W. Va.Code, 61-8B-4(a)(1) (1991), by means of forcible compulsion. The case was styled State of West Virginia v. Keith O'Dell McCourt, case no. 94-F-24 (Webster County).

The record indicates that the petitioner was living in the Commonwealth of Virginia. On September 7, 1994, the Prosecuting Attorney of Webster County sent a letter by certified mail notifying the petitioner that he was to appear in the Circuit Court on September 12, 1994, for arraignment and the posting of bond. The letter, sent to the petitioner in care of an individual by the name of Becky Gaylor in Waynesboro, Virginia, was returned unclaimed. Bench warrants for the petitioner's arrest were issued on September 12, 1994, January 18, 1995, May 8, 1995, January 18, 1996, May 22, 1996, and September 9, 1996. According to the State, the Circuit Court, thereafter, entered a general order granting bench warrants in each subsequent term of court for the petitioner's arrest.

In March 2006, the petitioner was detained in Webster County for driving under the influence of alcohol and driving upon a suspended license. That event resulted in his arrest with regard to the 1994 indictment when his name was matched with records of unserved warrants maintained by the Webster County Office of Emergency Services. The Circuit Court conducted an arraignment upon the indictment on May 1, 2006, and the petitioner entered a plea of not guilty to the sexual assault charge. Although the petitioner was released upon $50,000 bond, he was found in violation thereof for consuming alcohol.

Relying upon W. Va.Code, 62-3-21 (1959), the petitioner filed a motion to dismiss the indictment and to be discharged from further prosecution because of the failure of the State to bring him to trial between his 1994 indictment and 2006 arrest. Following a hearing conducted on May 12, 2006, the Circuit Court entered an order on July 14, 2006, denying the motion and scheduling the case for trial. The Circuit Court did not set forth specific reasons in the order for the denial of the motion. However, the Court stayed further proceedings to allow the petitioner an opportunity to pursue his request for relief in prohibition in this Court.²

II. Standard of Review

This Court has original jurisdiction in prohibition proceedings pursuant to Art. VIII, § 3, of The Constitution of West Virginia. That jurisdiction is recognized in Rule 14 of the West Virginia Rules of Appellate Procedure and in various statutory provisions. W. Va.Code, 51-1-3 (1923); W. Va.Code, 53-1-2 (1933). In considering whether to grant relief in prohibition, this Court stated in the syllabus point of State ex rel. Vineyard v. O'Brien, 100 W.Va. 163, 130 S.E. 111 (1925), as follows: "The writ of prohibition will issue only in clear cases where the inferior tribunal is proceeding without, or in excess of, jurisdiction." Syl. pt. 1, State ex rel. Brison v. Kaufman, 213 W.Va. 624, 584 S.E.2d 480 (2003); syl. pt. 1, State ex rel. Laura R. v. Jackson, 213 W.Va. 364, 582 S.E.2d 811 (2003); State ex rel. Murray v. Sanders, 208 W.Va. 258, 260, 539 S.E.2d 765, 767 (2000); State ex rel. Barden and Robeson Corporation v. Hill, 208 W.Va. 163, 166, 539 S.E.2d 106, 109 (2000). See also, W. Va.Code, 53-1-1 (1923).

In the case to be determined, the petitioner does not contend that the Circuit Court of Webster County lacks jurisdiction to bring him to trial under the 1994 indictment. Rather, the petitioner suggests that he did not waive his right to a speedy trial within the context of W. Va.Code, 62-3-21 (1959), and that, at this point, the Circuit Court is exceeding its authority in allowing the case to go forward. In that context, a more specific standard concerning prohibition is applicable. As syllabus point 4 of State ex rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12 (1996), holds:

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.

Syl. pt. 1, State ex rel. Blake v. Hatcher, 218 W.Va. 407, 624 S.E.2d 844 (2005); syl. pt. 1, State ex rel. Cosenza v. Hill, 216 W.Va. 482, 607 S.E.2d 811 (2004); syl. pt. 2, State ex rel. Isferding v. Canady, 199 W.Va. 209, 483 S.E.2d 555 (1997). See also, 15 M.J., Prohibition § 14 (Matthew Bender & Co. 2006); 72A C.J.S. Prohibition § 22 (2004).

III. Discussion

The petitioner contends that his constitutional right to a speedy trial was violated because the State failed to bring him to trial between his 1994 indictment and 2006 arrest. In that regard, the petitioner relies upon W. Va.Code, 62-3-21 (1959), which provides, subject to various...