State ex rel. Porter v. Recht, 30439.

• Court: Supreme Court of West Virginia
• Writing for the Court: ALBRIGHT, Justice
• Citation: 566 S.E.2d 283,211 W.Va. 396
• Parties: STATE of West Virginia ex rel. Charles V. PORTER, M.D., Petitioner, v. Honorable Arthur M. RECHT, Judge of the Circuit Court of Ohio County, and the State of West Virginia, Respondents
• Docket Number: No. 30439.,30439.
• Decision Date: 18 June 2002

566 S.E.2d 283
211 W.Va. 396

STATE of West Virginia ex rel. Charles V. PORTER, M.D., Petitioner,
v.
Honorable Arthur M. RECHT, Judge of the Circuit Court of Ohio County, and the State of West Virginia, Respondents

No. 30439.

Supreme Court of Appeals of West Virginia.

Submitted June 4, 2002.

Decided June 18, 2002.

566 S.E.2d 284

Patrick S. Cassidy, Cassidy, Myers, Cogan, Voegelin & Tennant, L.C., Wheeling, West Virginia and Martin P. Sheehan, Sheehan & Nugent, P.L.L.C., Wheeling, West Virginia for the Petitioner

Herman D. Lantz, Special Prosecuting Attorney, Wheeling, West Virginia Attorney for the Respondent, State of West Virginia.

ALBRIGHT, Justice:

Petitioner Charles V. Porter, M.D., seeks a writ of prohibition to prevent the Circuit Court of Ohio County from proceeding to trial under an information charging him with twenty separate counts of false swearing arising out of two affidavits he signed in connection with a medical malpractice lawsuit. Petitioner argues that the information runs afoul of the Double Jeopardy Clause of the West Virginia Constitution¹ by charging him with separate counts of false swearing for each allegedly false statement set forth in the affidavits. Upon our review of the relevant statute combined with pertinent case law, we conclude that Petitioner is entitled to the requested writ of prohibition to prevent him from being wrongly subjected to multiple punishments for the same two offenses.

566 S.E.2d 285

I. Factual and Procedural Background

The Prosecuting Attorney of Ohio County, Scott R. Smith, charged Dr. Porter with twenty counts of false swearing in an information filed on July 20, 2001. The false swearing charges arose from two affidavits that Dr. Porter signed as a defendant in a medical malpractice civil action, which each contained ten separate statements. Dr. Porter pled not guilty to the charges set forth in the information and later filed a motion to require the State to elect the specific counts under which it intended to seek a conviction. Through the motion to elect, Dr. Porter raised the issues of multiplicitous charges and consequent violation of the Double Jeopardy Clause.

The circuit court denied Dr. Porter's motion for an election and later denied his motion seeking reconsideration of that denial by order entered on January 4, 2002. A trial in this matter was scheduled for March 25, 2002, on nineteen of the twenty counts contained in the information. Due to this Court's granting of a rule to show cause in connection with Dr. Porter's petition for a writ of prohibition, which was filed with this Court on March 6, 2002, the trial has been continued. Through the requested writ, Dr. Porter seeks to prevent the State from proceeding to trial under the existing information and to reduce the number of counts for false swearing that he is charged with from twenty to two.

II. Standard of Review

In syllabus point one of Farber v. Douglas, 178 W.Va. 491, 361 S.E.2d 456 (1985), we applied the following standard in connection with our consideration of whether to issue a writ of prohibition in a criminal matter that had not yet proceeded to trial:

"In determining whether to grant a rule to show cause in prohibition when a court is not acting in excess of its jurisdiction, this Court will look to the adequacy of other available remedies such as appeal and to the over-all economy of effort and money among litigants, lawyers and courts; however, this Court will use prohibition in this discretionary way to correct only substantial, clear-cut, legal errors plainly in contravention of a clear statutory, constitutional, or common law mandate which may be resolved independently of any disputed facts and only in cases where there is a high probability that the trial will be completely reversed if the error is not corrected in advance." Syllabus Point 1, Hinkle v. Black, 164 W.Va. 112, 262 S.E.2d 744 (1979).

178 W.Va. at 492, 361 S.E.2d at 457; see also Syl. Pt. 4, State ex rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12 (1996). With these principles in mind, we proceed to consider whether a writ should be issued.

III. Discussion

At the center of this issue of alleged multiplicitous charges is the statute that sets forth the offense of false swearing. Under West Virginia Code § 61-5-2 (1923) (Repl.Vol.2000), the offense is defined as follows:

To wilfully swear falsely, under oath or affirmation lawfully administered, in a trial of the witness or any other person for a felony, concerning a matter or thing not material, and on any occasion other than a trial for a felony, concerning any matter or thing material or not material, or to procure another person to do so, is false swearing and is a misdemeanor.

Id. (emphasis supplied). Because the false swearing allegations at issue arise in connection with the signing of two affidavits in a medical malpractice action, rather than statements made during the course of a trial, we are concerned with the underscored portion of the statute.

In charging Dr. Porter with twenty separate counts of false swearing in connection with two affidavits that he signed, the State has taken the position that every statement made in an affidavit can be separately prosecuted under the false swearing statute. See W.Va.Code § 61-5-2. Dr. Porter contends that in the instance of an affidavit, as opposed to testimonial false swearing that occurs in the context of court proceedings, the gravamen of the offense is the act of swearing to the veracity of one or more facts set forth in the affidavit and not the act of separately "making" each of those statements

566 S.E.2d 286

in the context of the affidavit. Accordingly, Dr. Porter argues that the State's approach in charging him with twenty, rather than two counts, of false swearing constitutes over zealous prosecution and does not withstand scrutiny based on either a statutory analysis or common law principles

To support its position, the State relies heavily on this Court's recent decision in State v. Green, 207 W.Va. 530, 534 S.E.2d 395 (2000). In Green, we examined the uttering statute² to determine whether a conviction for ten counts of uttering that arose from the contemporaneous presentment of ten forged money orders was sustainable. As in this case, the...