State ex rel. Shorter v. Hey, Nos. 15068

CourtSupreme Court of West Virginia
Writing for the CourtMcHUGH; NEELY; McGRAW
Docket Number15079 and 15085,Nos. 15068
PartiesSTATE of West Virginia, ex rel. Frank SHORTER v. Honorable John HEY, Judge, Circuit Court of Kanawha County. STATE of West Virginia, ex rel. Lester YERKES v. Honorable John HEY, Judge, Circuit Court of Kanawha County. STATE of West Virginia, ex rel. Michelle SHORTER v. Honorable John HEY, Judge, Circuit Court of Kanawha County.
Decision Date17 March 1981

Page 51

294 S.E.2d 51
170 W.Va. 249
STATE of West Virginia, ex rel. Frank SHORTER
v.
Honorable John HEY, Judge, Circuit Court of Kanawha County.
STATE of West Virginia, ex rel. Lester YERKES
v.
Honorable John HEY, Judge, Circuit Court of Kanawha County.
STATE of West Virginia, ex rel. Michelle SHORTER
v.
Honorable John HEY, Judge, Circuit Court of Kanawha County.
Nos. 15068, 15079 and 15085.
Supreme Court of Appeals of West Virginia.
March 17, 1981.
Concurring Opinion March 18, 1981.
Rehearing Denied April 30, 1981.
Dissenting Opinion July 2, 1982.

Page 53

[170 W.Va. 251] Syllabus by the Court

1. Whereas W.Va.Code, 62-3-1, provides a defendant with a statutory right to a trial in the term of his indictment, it is W.Va.Code, 62-3-21, rather than W.Va.Code, 62-3-1, which is the legislative adoption or declaration of what ordinarily constitutes a speedy trial within the meaning of U.S.Const., amend. VI and W.Va.Const., art. III, § 14. State ex rel. Smith v. DeBerry, 146 W.Va. 534, 538, 120 S.E.2d 504, 506 (1961).

2. The determination of what is good cause, pursuant to W.Va.Code, 62-3-1, for a continuance of a trial beyond the term of indictment is in the sound discretion of the trial court, and when good cause is determined a trial court may, pursuant to W.Va.Code, 62-3-1, grant a continuance of a trial beyond the term of indictment at the request of either the prosecutor or defense, or upon the court's own motion.

3. A trial judge in a multi-judge circuit may, upon his own motion and for good cause, order a continuance of a trial beyond the term of indictment because of the judge's congested trial docket, and such judge need not ascertain whether any other judge in the circuit can try the case within the term of indictment. W.Va.Code, 62-3-1.

4. Where the trial court is of the opinion that the state has deliberately or oppressively sought to delay a trial beyond the term of indictment and such delay has resulted in substantial prejudice to the accused, the trial court may, pursuant to W.Va.Code, 62-3-1, finding that no good cause was shown to continue the trial, dismiss the indictment with prejudice, and in so doing the trial court should exercise extreme caution and should dismiss an indictment pursuant to W.Va.Code, 62-3-1, only in furtherance of the prompt administration of justice.

5. Syl. pts. 1 and 2 in State ex rel. Holstein v. Casey, 164 W.Va. 460, 265 S.E.2d 530 (1980) are hereby overruled to the extent the same are in conflict with this opinion.

Boettner, Campbell & Crane and Gregory J. Campbell, Charleston, for Shorters, Relators.

John E. Dorsey and Michael T. Clifford, Charleston, for Yerkes Relator.

James E. Roark, Pros. Atty., Frances W. McCoy, Asst. Pros. Atty., Charleston, for respondent.

McHUGH, Justice:

In these actions, Frank Shorter, by petition filed December 4, 1980; Lester W. Yerkes, Jr., by petition filed December 8, 1980; and Michelle Shorter, by petition filed December 16, 1980, seek to prohibit the respondent, Judge John Hey, of the Circuit Court of Kanawha County, West Virginia, from conducting a trial of the relators upon offenses charged in an indictment against the relators returned at the May 1980 term by the Grand Jury of the Circuit Court of Kanawha County, West Virginia.

By orders of this Court entered December 4, 1980, December 9, 1980, and December 16, 1980, rules were issued directing the respondent to show cause why writs of prohibition should not be awarded against him. Upon motion of the respondent, filed January 15, 1981, this Court, by order entered

Page 54

January 22, 1981, consolidated the three petitions for purposes of argument and submission.

[170 W.Va. 252] Accordingly, these actions are before this Court upon the petitions of the relators, the consolidated answer of the respondent, all matters of record, including a transcript of the July 17, 1980, hearing in the Circuit Court of Kanawha County, and upon the memoranda of law and argument of counsel.

The petitions assert that relators Frank Shorter and Lester W. Yerkes, Jr. were, on February 28, 1980, and February 27, 1980, respectively, arrested upon warrants issued on February 27, 1980, by Magistrate Burl Holbrook of Kanawha County, West Virginia. The warrants charged Shorter and Yerkes with offenses of robbery by violence. The record indicates that Michelle Shorter was not charged with an offense at that time.

Bond was initially set at $50,000.00 for Frank Shorter by Judge Fred L. Fox, II of the Circuit Court of Marion County, West Virginia, and $50,000.00 for Lester Yerkes by Judge Patrick Casey of the Circuit Court of Kanawha County, West Virginia.

The grand jury, during the May 1980 term of the Circuit Court of Kanawha County returned indictment No. CR-80-F-247 charging the relators, Frank Shorter, Lester W. Yerkes, Jr. and Michelle Shorter, with two counts of robbery by violence.

On July 17, 1980, a hearing was held before Judge John Hey of the Circuit Court of Kanawha County, West Virginia, at which hearing the trial court indicated it would grant motions of the relators for separate trials. Furthermore, over the objections and exceptions of counsel for the relators, Judge Hey, upon his own motion, continued the relators' cases to the September 1980 term of court, setting the cases for trial on November 18, 1980. The terms of court for Kanawha County begin the second Monday in January, May and September. W.Va.Code, 51-2-1m.

The petitions assert and the record indicates that the relators' cases were continued from the May to the September 1980 term of court because the judge had other matters scheduled in the remainder of the May term and, further, that the judge intended to attend a seminar and then take a vacation.

Counsel for the relators subsequently filed in the Circuit Court of Kanawha County pleas in bar asserting that the relators should not be prosecuted because (1) they were not tried during the May 1980 term and, (2) neither the relators nor the State moved that the cases be continued to the September 1980 term. These pleas in bar were denied by the trial judge.

In this prohibition proceeding, the relators contend that the trial judge abused his discretion, pursuant to the decision of this Court in State ex rel. Holstein v. Casey, 164 W.Va. 460, 265 S.E.2d 530 (1980) by continuing the relators' cases without good cause from the May 1980 to the September 1980 term. The relators further contend that, inasmuch as neither the relators nor the State moved for a continuance, the trial court committed error in continuing the relators' cases upon its own motion. Accordingly, the relators seek to be discharged from further prosecution. 1

The respondent contends that good cause existed for the continuance of the relators' cases to the September 1980 term. Moreover, the respondent denies that the relators should be discharged from further

Page 55

prosecution and asks this Court to reconsider its opinion in Holstein.

At issue in this action is W.Va.Code, 62-3-1, providing that, unless good cause be shown, a criminal defendant shall be [170 W.Va. 253] tried in the same term of court in which he is indicted. This statutory provision we shall refer to as the one-term rule. 2

Also to be considered is W.Va.Code, 62-3-21, providing that, subject to enumerated exceptions, a criminal defendant shall be discharged from prosecution if not tried within three terms of court after presentment, indictment or appeal from an inferior tribunal. This statutory provision we shall refer to as the three-term rule. 3

In State ex rel. Holstein v. Casey, supra, the defendant was indicted during the May term, 1979, for the felony offense of stealing a tractor. At a pre-trial conference held August 23, 1979, at which no judge was present, but which conference was apparently attended by the defendant, his counsel, and a prosecutor, a court secretary assigned January 9, 1980, as the trial date. The defendant's November 29, 1979, motion to dismiss, for lack of trial in the same term of indictment and denial of speedy trial, was denied by the trial judge. 4

This Court, in Holstein, granted a writ of prohibition to prevent further prosecution of the defendant upon the indictment. Specifically, this Court held that, pursuant to W.Va.Code, 62-3-1, a defendant is entitled to be forever discharged from prosecution if he has not been tried in the same term as his indictment and there has been no grant of a continuance for good cause.

This Court stated, in Holstein, that the determination of what is good cause for a continuance, under W.Va.Code, 62-3-1, is in the sound discretion of the trial court. However, such a continuance may not be granted pro forma by the trial court, but must be requested by a party and the trial court must make a ruling. Furthermore, this Court stated that inasmuch as the West Virginia Legislature has determined what time periods constitute a denial of speedy trial, the defendant, upon a delay of trial, need not show actual prejudice.

Justice Thomas Miller dissented in Holstein stating that W.Va.Code, 62-3-1, should not be read as a legislative command to dismiss the charge against a defendant where, absent good cause, a trial is not held during the same term an indictment is returned. He stated that in such circumstances,

Page 56

the charge should not be dismissed and the defendant could compel a trial by mandamus.

Justice Miller also concluded that it is a violation of the defendant's right to a speedy trial under W.Va.Code, 62-3-21, the three-term rule (not such a violation under W.Va.Code, 62-3-1, the one-term rule) which by express statutory language mandates[170 W.Va. 254] that the defendant be discharged from further prosecution. The outer boundary beyond which a defendant cannot be prosecuted, subject to certain statutory exceptions, is W.Va.Code, 62-3-21, not W.Va.Code, 62-3-1. 5

The majority in Holstein relies upon the premise that W.Va.Code, 62-3-1, is...

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31 practice notes
  • State v. Corey, No. 13–0769.
    • United States
    • Supreme Court of West Virginia
    • April 23, 2014
    ...at the request of either the prosecutor or defense, or upon the court's own motion.” Syllabus point 2, State ex rel. Shorter v. Hey, 170 W.Va. 249, 294 S.E.2d 51 (1981). 6. “Assignments of error that are not argued in the briefs on appeal may be deemed by this Court to be waived.” Syllabus ......
  • State v. Davis, No. 16433
    • United States
    • Supreme Court of West Virginia
    • March 25, 1986
    ...322, 305 S.E.2d 278 (1983); Syl. pt. 8, State v. Flint, 171 W.Va. 676, 301 S.E.2d 765 (1983); Syl. pt. 2, State ex rel. Shorter v. Hey, 170 W.Va. 249, 294 S.E.2d 51 (1981); Syl. pt. 1, State v. Cunningham, 170 W.Va. 119, 290 S.E.2d 256 (1981); Syl. pt. 2, State v. Bush, 163 W.Va. 168, 255 S......
  • State ex rel. Porter v. Farrell, No. 21-0090
    • United States
    • Supreme Court of West Virginia
    • June 3, 2021
    ...his bond; [or] (5) the inability of the jury to agree on their verdict."), overruled on other grounds by State ex rel. Shorter v. Hey , 170 W. Va. 249, 294 S.E.2d 51 (1981). Be that as it may, the prefatory statutory language, itself, requires that the terms of court to be counted towards t......
  • State v. McCartney, No. 101457.
    • United States
    • Supreme Court of West Virginia
    • November 17, 2011
    ...at the request of either the prosecutor or defense, or upon the court's own motion.” Syllabus Point 2, State ex rel. Shorter v. Hey, 170 W.Va. 249, 294 S.E.2d 51 (1981). 3. “Where the trial court is of the opinion that the state has deliberately or oppressively sought to delay a trial beyon......
  • Request a trial to view additional results
31 cases
  • State v. Corey, No. 13–0769.
    • United States
    • Supreme Court of West Virginia
    • April 23, 2014
    ...at the request of either the prosecutor or defense, or upon the court's own motion.” Syllabus point 2, State ex rel. Shorter v. Hey, 170 W.Va. 249, 294 S.E.2d 51 (1981). 6. “Assignments of error that are not argued in the briefs on appeal may be deemed by this Court to be waived.” Syllabus ......
  • State v. Davis, No. 16433
    • United States
    • Supreme Court of West Virginia
    • March 25, 1986
    ...322, 305 S.E.2d 278 (1983); Syl. pt. 8, State v. Flint, 171 W.Va. 676, 301 S.E.2d 765 (1983); Syl. pt. 2, State ex rel. Shorter v. Hey, 170 W.Va. 249, 294 S.E.2d 51 (1981); Syl. pt. 1, State v. Cunningham, 170 W.Va. 119, 290 S.E.2d 256 (1981); Syl. pt. 2, State v. Bush, 163 W.Va. 168, 255 S......
  • State ex rel. Porter v. Farrell, No. 21-0090
    • United States
    • Supreme Court of West Virginia
    • June 3, 2021
    ...his bond; [or] (5) the inability of the jury to agree on their verdict."), overruled on other grounds by State ex rel. Shorter v. Hey , 170 W. Va. 249, 294 S.E.2d 51 (1981). Be that as it may, the prefatory statutory language, itself, requires that the terms of court to be counted towards t......
  • State v. McCartney, No. 101457.
    • United States
    • Supreme Court of West Virginia
    • November 17, 2011
    ...at the request of either the prosecutor or defense, or upon the court's own motion.” Syllabus Point 2, State ex rel. Shorter v. Hey, 170 W.Va. 249, 294 S.E.2d 51 (1981). 3. “Where the trial court is of the opinion that the state has deliberately or oppressively sought to delay a trial beyon......
  • Request a trial to view additional results

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