State ex rel. Webb v. Wilson
| Decision Date | 15 February 1990 |
| Docket Number | Nos. 19276,19279,s. 19276 |
| Citation | 390 S.E.2d 9,182 W.Va. 538 |
| Court | West Virginia Supreme Court |
| Parties | STATE ex rel. Jim WEBB v. Honorable Ronald E. WILSON, Special Judge of the Circuit Court of Mingo County, and Donald J. Tennant, Jr., Special Prosecuting Attorney of Mingo County. and STATE ex rel. Hugh WELLMAN v. Honorable Ronald E. WILSON, Special Judge of the Circuit Court of Mingo County, and Donald J. Tennant, Jr., Special Prosecuting Attorney of Mingo County. |
Syllabus by the Court
1. W.Va.Code, 62-3-21 [1959] limits the state to three unexcused regular terms of court, calculated in accordance with State ex rel. Spadafore v. Fox, 155 W.Va. 674, 186 S.E.2d 833 (1972), in which to bring an accused to trial on the charges contained in an indictment. Once three unexcused regular terms of court have lapsed, and the state has failed to bring the accused to trial on the charges contained in the indictment, the state may not further proceed on the charges contained in the indictment, for, under the plain meaning of the statute, the accused must be "forever discharged" and the indictment dismissed.
2. Once an accused is indicted, an entire panoply of constitutional rights attaches, including the right to trial without unreasonable delay, as implemented by W.Va.Code, 62-3-21 [1959], regardless of whether the indictment is dismissed as void after three unexcused regular terms of court.
Rudolph L. di Trapano, Lonnie C. Simmons, Di Trapano & Jackson, Charleston, for Jim Webb.
Ronald E. Wilson, Sp. Judge of the Circuit Ct. of Mingo County, New Cumberland, Donald Tennant, Jr., Sp. Pros. Atty., Wheeling, for Honorable Ronald E. Wilson.
Lafe C. Chafin, Barrett, Chafin, Lowry & Hampton, Huntington, for Hugh Wellman.
The issue in this case involves W.Va.Code, 62-3-21 [1959], the three-term rule, which implements an accused's constitutional right to a speedy trial, contained in article III, § 14 of the West Virginia Constitution, 1 and reads, 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 presentment is made or the indictment is found against him, without a trial[.] 2
In consolidated writs of prohibition filed by petitioners Jim Webb and Hugh Wellman, the petitioners, two of numerous persons indicted for offenses resulting from a political corruption investigation in Mingo County, West Virginia (Mingo County indictees), ask this Court to prohibit the state from further proceeding on the charges contained in the indictments returned against them, because of the alleged violation of the three-term rule. 3
The undisputed facts before the Court are that each of the petitioners was indicted in the September, 1987 term of court, specifically, on October 26, 1987, for his alleged role in the corruption investigation. 4
In the April, 1989 term, specifically, on June 30, 1989, after more than three unexcused regular terms of court had expired, the indictments were dismissed as void due to an improperly impanelled grand jury. 5
In the April, 1989 term, specifically, on July 18, 1989, the petitioners were reindicted for the same charges alleged in the original, September, 1987 term indictments. Four unexcused regular terms of court had lapsed, beginning with the January, 1988 term, since the original, September, 1987 indictments were returned against the petitioners, and they had not been brought to trial. 6
The sole issue before the Court in this proceeding is whether the state may reindict an accused after three unexcused regular terms of court have expired, without bringing the accused to trial on the original indictment because, after the three unexcused regular terms of court had expired on the original indictment, the original indictment was dismissed as void. We conclude that the plain meaning of W.Va.Code, 62-3-21 [1959] mandates that the state's failure to bring an accused to trial within three unexcused regular terms of court bars the state from further prosecution of the charges contained in the indictment, and we therefore grant the writs.
Both of these petitions stem from the political corruption investigation in Mingo County, West Virginia, discussed in detail in State v. Adkins, 182 W.Va. 443, 388 S.E.2d 316 (1989). As discussed in Adkins, numerous local political personalities in Mingo County were investigated by state authorities in the late 1980's. As a result of the widespread county investigation, a special grand jury was impanelled which returned numerous indictments, and numerous special judges were appointed by this Court.
Three special judges eventually presided over three groups of Mingo County indictees' motions to dismiss the original indictments based on W.Va.Code, 62-3-21 [1959]. None of the Mingo County indictees was tried within the time constraints of the three-term rule. After three unexcused regular terms of court had expired, each of the original indictments was dismissed. These dismissal orders were based, not on the three-term rule, but on the manner in which the grand jury was impanelled. Because the grand jury was irregularly impanelled, the indictments were dismissed as void. See Adkins. Again, it is critical to note that the original indictments were not dismissed until after three unexcused regular terms of court had lapsed.
Because the original indictments were dismissed as void due to the grand jury irregularity, rather than being dismissed under W.Va.Code, 62-3-21 [1959], the state assumed it could reindict all of the original Mingo County indictees for the same offenses alleged in the original indictments. There was a further assumption that there would be three additional, unexcused regular terms of court, running from the return of the second set of indictments, in which to bring the Mingo County indictees to trial. Relying on language contained in State ex rel. Farley v. Kramer, 153 W.Va. 159, 169 S.E.2d 106, cert. denied, 396 U.S. 986, 90 S.Ct. 482, 24 L.Ed.2d 451 (1969) (discussed infra ), the state reindicted the Mingo County indictees on the same charges contained in the original indictments.
Each of the Mingo County indictees again made motions to dismiss the second set of indictments. As they had contended in their motions to dismiss the original indictments, they again contended that three unexcused regular terms of court had lapsed on the original set of indictments. Therefore, they contended the subsequent dismissal of the original indictments, on the basis that they were void because of the grand jury irregularity, had no effect on their right to dismissal under W.Va.Code, 62-3-21 [1959]. That right had already accrued at the end of the third unexcused regular term of court from the original indictments and was preserved by their motions to dismiss the original indictments based on the three-term rule. The Mingo County indictees further noted that Farley concerned the entry of a dismissal order of an indictment prior to the expiration of three unexcused regular terms of court. Therefore, it was inapplicable to their cases and the state was barred under the plain meaning of W.Va.Code, 62-3-21 [1959] from reindicting on the same offenses.
Of the three special judges who heard the numerous motions to dismiss the second set of indictments, only one special judge, Ronald Wilson, denied the petitioners' motion to dismiss. 7 In doing so, he adopted the state's contention that the state may reindict an accused after three unexcused regular terms of court have lapsed, without bringing the accused to trial on the charges contained in the original indictment, because the original indictments were dismissed as void.
Respondent Wilson then scheduled the petitioners for trial. The order was stayed pending this petition.
In the petitioners' cases we are now asked to directly address that which we implied in State v. Adkins, 182 W.Va. 442, 388 S.E.2d 316 (1989). Specifically, if an indictment is dismissed as void after three unexcused regular terms of court from its return against an accused, may the state reindict the accused for the same offense under W.Va.Code, 62-3-21 [1959]? The answer is now explicitly no.
In Adkins, we tacitly ruled that W.Va.Code, 62-3-21 [1959], the three-term rule, is activated by an indictment, regardless of whether the indictment is subsequently dismissed.
Adkins was an appeal by the state from the dismissal orders entered by Special Judge Robert Halbritter. Judge Halbritter presided over another group of Mingo County indictees who also made motions to dismiss, due to the three-term rule. See supra note 7. When the state filed the appeal, the group of Mingo County indictees in Adkins filed with this Court a motion to dismiss the appeal as improvidently granted, based on the state's limited right to appeal criminal cases. 8
Rather than granting the indictees' motion to dismiss the appeal as improvidently granted, this Court in Adkins, without extended discussion, treated the case as an appeal and affirmed Judge Halbritter's ruling, 9 holding that:
W.Va.Code § 58-5-30 forbids an appeal by the State from an order dismissing an indictment unless that indictment could be categorized as 'bad or insufficient.' It is undisputed that the 1989 special grand jury [resulting in the second set of indictments] was properly impaneled and the indictments were valid. Judge Halbritter's 1989 dismissal orders were based upon the State's failure to prosecute the 1988 indictments [the first set of indictments] within the three terms required by statute. Consequently, because the superseding indictments occurred in the fourth term of the original 1988 indictments, and the 1989 indictments that are the subject of this action were the same charges brought in the 1988 indictments, we have no choice...
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