State ex rel. State v. Reed, No. 25356.
| Court | Supreme Court of West Virginia |
| Writing for the Court | PER CURIAM |
| Citation | 204 W.Va. 520,514 S.E.2d 171 |
| Decision Date | 29 January 1999 |
| Docket Number | No. 25356. |
| Parties | STATE of West Virginia ex rel. the STATE of West Virginia, Petitioner, v. Honorable Jeffrey B. REED, Judge of the Circuit Court of Wood County, and Samuel William White, Respondents. |
514 S.E.2d 171
204 W.Va. 520
v.
Honorable Jeffrey B. REED, Judge of the Circuit Court of Wood County, and Samuel William White, Respondents
No. 25356.
Supreme Court of Appeals of West Virginia.
Submitted January 12, 1999.
Decided January 29, 1999.
Joseph P. Albright, Jr., Albright, Bradley, & Ellison, Parkersburg, West Virginia, Attorney for the Respondent, Samuel William White.
PER CURIAM:
This petition for a writ of prohibition1 was filed by Ginny Conley, Prosecuting Attorney for Wood County, against the Honorable Judge Jeffrey B. Reed. In this case, the prosecutor seeks to prohibit the dismissal of a criminal action by the Circuit Court of Wood County. This Court issued a show cause order in which a response has been filed by the defendant, Samuel William White (hereinafter referred to as Mr. White), in the underlying criminal case. Upon a review of the parties' arguments and the record below, we grant the writ of prohibition as moulded.
I.
FACTUAL AND PROCEDURAL HISTORY
Mr. White was indicted on nine assorted counts of sexual assault.2 The victim of the crimes was the adolescent child of Mr. White. At issue in this appeal is a discrepancy as to the time period during which the sexual assaults occurred. The indictment alleged that Mr. White committed the crimes between July 1990 and September 1990. According to
During the prosecutor's case-in-chief, no evidence was presented which proved that Mr. White committed the charged offenses against his child within the period of time from July 1990 to September 1990. Instead, the evidence established that Mr. White committed sexual assault offenses against his child between June 1991 and November 1991. As a result of the discrepancy in dates, Mr. White moved for judgment of acquittal, which was granted by the trial court.3 Thereafter, the prosecutor filed this petition seeking to prohibit the dismissal of the criminal action.
II.
STANDARD OF REVIEW
The standard of review applicable to a writ of prohibition was stated in Syllabus point 1 of State ex rel. United Hospital Center, Inc. v. Bedell, 199 W.Va. 316, 484 S.E.2d 199 (1997), where we held that "[a] writ of prohibition will not issue to prevent a simple abuse of discretion by a trial court. It will only issue where the trial court has no jurisdiction or having such jurisdiction exceeds its legitimate powers." Accord Syl. pt. 2, State ex rel. Kees v. Sanders, 192 W.Va. 602, 453 S.E.2d 436 (1994); Syl. pt. 2, State ex rel. Peacher v. Sencindiver, 160 W.Va. 314, 233 S.E.2d 425 (1977). This Court elaborated on this standard of review in Syllabus point 4 of State ex rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12 (1996), as follows:
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.
III.
DISCUSSION
In the instant proceeding the prosecutor concedes that the evidence adduced at trial did not place the commission of the crimes within the time period stated in the indictment. Notwithstanding such evidence, the prosecutor asserts that time is not an element of the offense of sexual assault. Therefore, the date variance was immaterial.4
The controlling statute in this case is W. Va.Code § 62-2-10 (1923) (Repl.Vol.1997), which states in relevant part that "[n]o indictment or other accusation shall be quashed or deemed invalid ... for omitting to state, or stating imperfectly, the time at which the offense was committed, when time is not of the essence of the offense."5 This
[W]here no statute of limitation bars [an offense], you may wholly omit the date of the offense from the indictment, unless it be one of the rare offenses where time enters into its essence; but, where there is a limitation, you must state [the] date, so it appear the offense is not barred. Where you do state the date, a variance between that date and the proof is immaterial, in any case, at common-law, so you prove it to be at such a date as brings it within the period of the statute, if any...
To continue reading
Request your trial
-
Frank A. v. Ames, 20-0024
...[petitioner] was charged." State v. David D.W., 214 W.Va. 167, 173, 588 S.E.2d 156, 162 (2003) (citing State ex rel. State v. Reed, 204 W.Va. 520, 523, 514 S.E.2d 171, 174 (1999). However, "[f]or purposes of assessing constitutional rights under the ex post facto clause of any pen......
-
State v. McIntosh, No. 26849.
...for the same offense." See also State v. Crowder, 146 W.Va. 810, 836, 123 S.E.2d 42, 57 (1961); see State ex rel. State v. Reed, 204 W.Va. 520, 514 S.E.2d 171 In syllabus point three of State v. Johnson, 197 W.Va. 575, 476 S.E.2d 522 (1996), this Court stated: If the proof adduced at t......
-
Morrisey v. Afl-Cio, No. 17-0187.
...record to determine if any apparently reasonable grounds exist for the trial court's action.").11 See State ex rel. State v. Reed, 204 W.Va. 520, 514 S.E.2d 171 (1999).12 Associate Justice Rubin serves on the Massachusetts Appeals Court; he is a Professor of Law at Georgetown Universit......
-
Frank A. v. Ames, 20-0024
...was charged." State v. David D.W. , 214 W. Va. 167, 173, 588 S.E.2d 156, 162 (2003) (citing State ex rel. State v. Reed , 204 W. Va. 520, 523, 514 S.E.2d 171, 174 (1999) ). However, "[f]or purposes of assessing constitutional rights under the ex post facto clause of any penal stat......
-
Frank A. v. Ames, 20-0024
...[petitioner] was charged." State v. David D.W., 214 W.Va. 167, 173, 588 S.E.2d 156, 162 (2003) (citing State ex rel. State v. Reed, 204 W.Va. 520, 523, 514 S.E.2d 171, 174 (1999). However, "[f]or purposes of assessing constitutional rights under the ex post facto clause of any pen......
-
State v. McIntosh, No. 26849.
...for the same offense." See also State v. Crowder, 146 W.Va. 810, 836, 123 S.E.2d 42, 57 (1961); see State ex rel. State v. Reed, 204 W.Va. 520, 514 S.E.2d 171 In syllabus point three of State v. Johnson, 197 W.Va. 575, 476 S.E.2d 522 (1996), this Court stated: If the proof adduced at t......
-
Morrisey v. Afl-Cio, No. 17-0187.
...record to determine if any apparently reasonable grounds exist for the trial court's action.").11 See State ex rel. State v. Reed, 204 W.Va. 520, 514 S.E.2d 171 (1999).12 Associate Justice Rubin serves on the Massachusetts Appeals Court; he is a Professor of Law at Georgetown Universit......
-
Frank A. v. Ames, 20-0024
...was charged." State v. David D.W. , 214 W. Va. 167, 173, 588 S.E.2d 156, 162 (2003) (citing State ex rel. State v. Reed , 204 W. Va. 520, 523, 514 S.E.2d 171, 174 (1999) ). However, "[f]or purposes of assessing constitutional rights under the ex post facto clause of any penal stat......