State ex rel. Stines v. Locke

• Citation: 159 W.Va. 292,220 S.E.2d 443
• Decision Date: 19 December 1975
• Docket Number: No. 13654,13654
• Court: Supreme Court of West Virginia
• Parties: STATE ex rel. George Allen STINES, v. The Honorable Kermit A. LOCKE, Judge, Circuit Court, Raleigh County, and Thomas B. Canterbury, Prosecuting Attorney, Raleigh County.

Page 443

220 S.E.2d 443

159 W.Va. 292

STATE ex rel. George Allen STINES, v. The Honorable Kermit A. LOCKE, Judge, Circuit Court, Raleigh

County, and Thomas B. Canterbury, Prosecuting

Attorney, Raleigh County.

No. 13654.

Supreme Court of Appeals of West Virginia.

Dec. 19, 1975.

Syllabus by the Court

1. A person charged by indictment with a felony and remanded to a court of competent jurisdiction is entitled to a speedy trial and must be tried within three regular terms of court, after the indictment is returned or be forever discharged from prosecution for the offense, unless the failure to try him was excused for the reasons stated in W.Va.Code, 1931, 62--3--21, as amended.

2. Where one indicted for a felony in this state has been incarcerated in another state, the prosecuting authorities in this jurisdiction, pursuant to the provisions of W.Va.Code, 1931, 62--14--1, as amended, are under a mandatory duty to apply to the authorities of the incarcerating state for temporary custody of said accused for the purpose of offering him a speedy trial and the failure of the state to so act will cause the terms during which he was so imprisoned to be chargeable against the state under W.Va.Code, 1931, 62--3--21, as amended.

Joseph Luchini, Beckley, for relator.

Chauncey H. Browning, Jr., Atty. Gen., E. Leslie Hoffman, III, Asst. Atty. Gen., Charleston, for respondents.

CAPLAN, Justice:

The single issue for resolution in this original proceeding in prohibition is whether the 'three term rule,' embodied in W.Va. Code, 1931, 62--3--21, as amended, prohibits the state from trying the petitioner in the circumstances hereinafter set forth. That statute provides, in pertinent part:

Every person charged by presentment or indictment with a felony or misdemeanor, and remanded to a court of competent jurisdiction for trial, shall be forever discharged from prosecution for the offense, if there be three regular terms of such court, after the . . . indictment is found against him, without a trial, unless the failure to try him was caued by his insanity; or by the witnesses for the State being enticed or kept away, or prevented from attending by sickness or inevitable accident; or by a continuance granted on the motion of the accused; or by reason of his escaping from jail, or failing to appear according to his recognizance, or of the inability of the jury to agree in their verdict . . .

During the January Term, 1973, of the Circuit Court of Raleigh County, the grand jury serving that court returned an indictment against the petitioner, George Allen Stines, wherein he was charged with the crime of robbery. W.Va. Code, 1931, 51--2--1j, as amended, provides that three terms of court shall be held annually in Raleigh County, the Tenth Judicial Circuit, January, April and September. It is the contention of the petitioner that three terms of court having passed after the term in which the indictment was found, during which the state, without statutory excuse, has failed to try him, such trial should now be prohibited.

Prior to the April Term, 1973, the prosecuting authorities of Raleigh County voluntarily relinquished custody of the petitioner to the State of Michigan where he was subsequently convicted of a crime and incarcerated in the penitentiary of that state. During the April term and the September term of 1973 the petitioner remained so incarcerated in Michigan. Consequently, no trial was afforded him in Raleigh County during those terms. In March, 1974 the petitioner was returned to Raleigh County and was placed in jail to await trial.

Subsequent to the return of the petitioner, the state failed to try him at the April and September terms of 1974; nor was he afforded a trial during the January Term, 1975. A trial date was finally set during the April Term, 1975, but the case was continued pending the outcome of this petition.

Petitioner Stines relies on four terms of court as the basis for the relief sought in this proceeding. He contends that the state is chargeable with the following terms: April, 1973; September, 1973; January, 1974 and January, 1975. He asserts that the state was obligated under W.Va. Code, 1931, 62--3--21, as amended, to have afforded him a trial during those terms and that such obligation was not excused under the statute. If the petitioner's assertion is correct as to any three of the four terms of court alluded to above, he is entitled to the relief sought.

Let us consider first the April and September terms of 1973. The petitioner was in the Michigan penitentiary during those terms due to the voluntary relinquishment of him by the Raleigh County authorities. The record fails to reveal that the state made any attempt to gain custody of him during that period of time for the purpose of trying him. In these circumstances and in view of the constitutional and statutory provisions mandating the right to a speedy trial, we are constrained to hold that the state cannot be excused for failing to afford the petitioner a trial during those terms.

The right to a trial 'without unreasonable delay' is basic in the administration of criminal justice and is guaranteed by both the state and federal constitutions. W.Va. Const., Art. III, § 14; U.S.Const. Amend VI. The legislature, desiring to render effective that constitutional mandate, enacted W.Va. Code, 1931, 62--3--21, as amended, requiring one charged with a crime to be tried within three terms of the term in which the indictment was returned. Hollandsworth v. Godby, 93 W.Va. 543, 117 S.E. 369 (1923). 'The right to a speedy trial is intended to avoid oppression and prevent delay by Imposing on the courts and on the prosecution an obligation to proceed with reasonable dispatch. It has been said that the basic policy underlying the constitutional guaranty and the statutes enacted to implement it is to protect the accused from having criminal charges pending against him an undue length of time.' (Emphasis supplied) 21 Am.Jur.2d, Criminal Law, § 242.

In furtherance of the well-established right of an accused to a speedy trial the legislature, in 1971, enacted a statute now designated W.Va. Code, 1931, 62--14--1, as amended. This relatively recent act, entitled Agreement on Detainers, is a two-pronged instrument, designed to implement the speedy trial concept by either the accused or the state. Thereunder, an accused who learns of a criminal charge against him in another state, is afforded a means by which he can be permitted to return temporarily to the charging state, if it is a member of the pact provided for in this statute, for the purpose of being tried or otherwise finally disposing of any criminal charge against him. This provision is contained in Article III of the above st...