State ex rel. Spadafore v. Fox, 13060

Citation186 S.E.2d 833,155 W.Va. 674
Decision Date29 February 1972
Docket NumberNo. 13060,13060
CourtSupreme Court of West Virginia
PartiesSTATE ex rel. John Richard SPADAFORE et al. v. Honorable Fred L. FOX, Judge, etc., et al.

Syllabus by the Court

1. Under the provisions of Code, 62--3--21, as amended, the three unexcused regular terms of court that must pass before an accused can be discharged from further prosecution are regular terms occurring subsequent to the ending of the term at which the indictment was returned. The term at which the indictment was returned can not be counted as one of the three terms.

2. Any term at which a defendant procures a continuance of a trial on his own motion after an indictment is returned, or otherwise prevents a trial from being held, is not counted as one of the three terms in favor of discharge from prosecution under the provisions of Code, 62--3--21, as amended.

3. 'In the case of two such indictments, the accused is not entitled to count under said statute, any term at which he procured a continuance of either indictment on his own motion, or otherwise prevented a trial thereof.' Pt. 4, syllabus, State v. McIntosh, 82 W.Va. 483 (96 S.E. 79).

Paul E. Parker, Jr., Fairmont, for plaintiffs in error.

Chauncey H. Browning, Jr., Atty. Gen., Willard A. Sullivan, Richard E. Hardison, Asst. Attys. Gen., Charleston, for defendants in error.

BERRY, Judge:

This is an appeal by John Richard Spadafore and Anthony Donald Spadafore, hereinafter referred to as appellants, from a final judgment of the Circuit Court of Marion County on February 4, 1971 which denied the appellants' application for a writ of prohibition. The appellants had filed their petition for a writ of prohibition in the Circuit Court of Marion County after the Criminal Court of Marion County on January 28, 1971 had denied their plea in abatement, motion to quash and motion to dismiss, which motions were based on the grounds that three regular terms of court had passed without a trial, and, consequently, under Code, 62--3--21, as amended, the appellants were entitled to be discharged from prosecution for grand larceny. A writ of error was granted on February 8, 1971 and the case was submitted for decision upon the briefs and oral arguments of the parties on January 25, 1972.

The appellants were arrested on September 11, 1968 and charged with grand larceny of a Caterpillar Traxcavator. They were indicted on September 17, 1968 and on October 3, 1968 the appellants filed a plea in abatement on the grounds that the state failed to grant a preliminary hearing to them. The appellants' motions for a bill of particulars and discovery were also filed on October 3, 1968. However, no action was taken on the plea or motions and the September, 1968 Term ended without a trial. The regular terms of the Criminal Court commence on the second Tuesday in January and May and on the third Tuesday in September.

On March 1, 1969, during the January, 1969 Term, the case and the pending motions were continued to the May, 1969 Term on the appellants' motion.

On September 5, 1969, during the May, 1969 Term, a lengthy hearing was held on the appellants' plea in abatement. However, the record shows that the hearing was 'duly adjourned and continued until a later date to be agreed upon between counsel and the Court.' The hearings were resumed October 23, 1969 during the September, 1969 Term but the case was continued to the January, 1970 Term on the motion of the appellants. At this January, 1970 Term the case was continued again on motion of the appellants.

On May 29, 1970, during the May, 1970 Term, the appellants filed another plea in abatement alleging that the indictment was not returned 'in open Court' and was not legally valid. The Court did not rule on the plea but on July 13, 1970, the Grand Jury returned another indictment against the appellants for the same offense. The appellants filed a plea in abatement to the second indictment on August 8, 1970. On September 3, 1970 the Court deferred its judgment on the plea in abatement and on the motion of the appellants, required the state to elect upon which indictment it would proceed. On September 14, 1970, the last day of the May Term, the state elected to proceed on the second indictment, and the appellants again filed a motion for discovery and a bill of particulars. The appellants had filed these motions during the September, 1968 Term before another judge of the court and they had been complied with. These motions were set for hearing September 16, 1970, which was one day after the beginning of the September Term.

On September 17, 1970, during the September Term, the Court granted appellants' motion for discovery and a bill of particulars. The appellants also successfully moved that the deposition of an out-of-state witness be taken. On September 23, 1970 the appellants filed a motion to suppress evidence and a hearing was scheduled for November 10, 1970 but the record does not show that the Court took any further action on that motion during that term.

A trial was set for October 14, 1970 but was not held because the Court Reporter was absent. The petit jury was discharged on January 7, 1971.

On January 22, 1971 the court set February 2, 1971 as the trial date and on January 28, 1971 the Criminal Court overruled appellants' motions to dismiss based on the three term statute and appellants filed their petition for a writ of prohibition in the Circuit Court of Marion County on January 29, 1971.

The three term statute, Code, 62--3--21, as amended, provides that an accused is to be discharged from prosecution if three terms of court pass and he is not brought to trial unless a term is excused.

Under the statute the term at which the indictment is returned is not to be counted as one of the three terms. Therefore, the September, 1968 Term of court is not counted. State ex rel. Smith v. DeBerry, 146 W.Va. 534, 120 S.E.2d 504; State ex rel. Farley v. Kramer, 153 W.Va. 159, 169 S.E.2d 106.

Any term at which a defendant procures a continuance on his own motion, or otherwise prevents a trial from being held, is not counted. State v. McIntosh, 82 W.Va. 483, 96 S.E. 79; State ex rel. Farley v. Kramer, Supra. Therefore, the January, 1969 Term, the September, 1969 Term and the January, 1970 Term are not to be counted in favor of the appellants because the case was continued on the appellants' motion during those terms. However, it is contended by the appellants that the May, 1969, May, 1970 and the September, 1970 Terms are three unexcused Terms which passed without...

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36 cases
  • State ex rel. Porter v. Farrell
    • United States
    • West Virginia Supreme Court
    • 3 Junio 2021
    ...subsequent to the ending of the term at which the indictment was returned[.]" Syl. Pt. 1[, in part], State ex rel. Spadafore v. Fox , 155 W. Va. 674, 186 S.E.2d 833 (1972).Syl. pt. 5, in part, State v. Holden , 243 W. Va. 275, 843 S.E.2d 527 (emphasis added). Accord Syl. pt. 4, State v. Car......
  • State v. Bias
    • United States
    • West Virginia Supreme Court
    • 10 Diciembre 1986
    ...three terms in favor of discharge from prosecution under the provisions of Code, 62-3-21, as amended." Syl. pt. 2, State ex rel. Spadafore v. Fox, 155 W. Va. 674, 186 S.E.2d 833 (1972). Mary Beth Kershner, Asst. Atty. Gen., Charleston, for Bradley J. Pyles, Logan, for appellee. McHUGH, Just......
  • State Va. v. Vanhoose
    • United States
    • West Virginia Supreme Court
    • 14 Octubre 2010
    ...the accused cannot take advantage of such delay and contend that he has been denied a speedy trial.” State ex rel. Spadafore v. Fox, 155 W.Va. 674, 679, 186 S.E.2d 833, 836 (1972). See also State v. Diaz, 334 Mont. 479, 148 P.3d 628, 634 (2006) (“In showing that [defendant] unlawfully solic......
  • State v. Hutcheson
    • United States
    • West Virginia Supreme Court
    • 19 Diciembre 1986
    ...necessity of a preliminary hearing. E.g., State ex rel. Rowe v. Ferguson, 165 W.Va. 183, 268 S.E.2d 45 (1980); State ex rel. Spadafore v. Fox, 155 W.Va. 674, 186 S.E.2d 833 (1972); see also State v. White, --- W.Va. ----, 280 S.E.2d 114 (1981). 9 Consequently, we conclude that the defendant......
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