State v. Adkins

Citation182 W.Va. 443,388 S.E.2d 316
Decision Date20 December 1989
Docket NumberNos. 19255-19262,s. 19255-19262
CourtSupreme Court of West Virginia
PartiesSTATE of West Virginia v. Steve ADKINS. STATE of West Virginia v. GOODWILL MOTORS, INC., a Corporation, Jack Webb, Joey Kohari, and Hugh Wellman. STATE of West Virginia v. Irvin "K.O." DAMRON. STATE of West Virginia v. Samuel KAPOURALES. STATE of West Virginia v. Robert SIMPKINS. STATE of West Virginia v. Paul SIZEMORE. STATE of West Virginia v. R. Doyle VAN METER, II. STATE of West Virginia v. W. Thomas WARD.

Syllabus by the Court

1. "Our law is in accord with the general rule that the State has no right of appeal in a criminal case, except as may be conferred by the Constitution or a statute." Syl. pt. 1, State v. Jones, 178 W.Va. 627, 363 S.E.2d 513 (1987).

2. Given its plain and ordinary meaning, the phrase "bad or insufficient," as set forth in W.Va.Code § 58-5-30 (1966), cannot be enlarged to encompass a situation in which the trial court ruled that the prosecution failed to prosecute within the three term rule pursuant to W.Va.Code § 62-3-21 (1989).

Frederick P. Stamp, Jr., Sp. Pros. Atty., Williamson, for State of W. Va.

Robert B. King, Sherri Goodman Dusic, King, Betts & Allen, Charleston, for Steve Adkins, Samuel Kapourales, Robert Simpkins, Paul Sizemore.

Cecil C. Varney, Williamson, for Goodwill Motors, Inc., a corp., Jack Webb, Joey Kohari, and Hugh Wellman.

Robert C. Chambers, Chambers, Chambers & Heilmann, Huntington, for Irvin "K.O." Damron.

James M. Casey, Point Pleasant, for R. Doyle Van Meter, II.

W. Warren Upton, Stephen B. Farmer, Jackson & Kelly, Charleston, for W. Thomas Ward.

BROTHERTON, Chief Justice:

This case involves eight consolidated appeals brought by the State of West Virginia from the Honorable Robert Halbritter's dismissal of the indictments returned in Mingo County, West Virginia, on June 3, 1989.

On April 7, 1988, a special grand jury in Mingo County, West Virginia, returned a true bill against the appellees, defendants below, indicting each defendant for misdemeanor and felony election law violations codified in W.Va.Code §§ 3-8-12, 3-8-5, 3-8-5(a), 3-8-5(d), and 3-8-8 (1987), in connection with the 1984 primary election in Mingo County. These indictments occurred at the end of the January, 1988, term of the Circuit Court of Mingo County.

Following the indictments, the defendants below filed various motions, including motions to quash, dismiss, and sever the indictments, and motions for a speedy trial. On May 11 and 12, 1988, the Honorable Patrick Henry, Special Judge of the Circuit Court of Mingo County, held hearings on these motions. Pursuant to the court's request, several defendants filed supplemental briefs in support of their motions with the court in late May, 1988. The State did not respond to these motions, nor did the court rule on the motions. No action was taken to move the indictments to trial or initiate further proceedings.

In late May, 1989, several defendants filed motions with Judge Henry to dismiss the indictments for the State's failure to provide a speedy trial pursuant to W.Va.Code § 62-3-21 (1989). By this point, the April, 1988, term, September, 1988, term and January, 1989, term of the Circuit Court of Mingo County had passed and the court was in the April, 1989, term.

On June 3, 1989, Special Prosecutors Stamp and Gurley sought and obtained superseding indictments from a newly impaneled special grand jury in Mingo County. 1 The new indictments alleged the same misdemeanor offenses as were contained in the earlier 1988 indictment, although it declined prosecution on the 1988 felony counts.

On June 8, 1989, the Honorable Robert C. Halbritter, Circuit Judge of Preston County, West Virginia, was appointed special judge to preside over the 1989 indictments. On June 9, 1989, the State moved to dismiss the 1988 indictments without prejudice, claiming that these indictments had been superseded by the June 3, 1989, indictments. On June 30, 1989, Judge Henry issued an order, based upon the earlier motions of the defendants, and dismissed the original April 7, 1988, indictments due to improper impaneling of the earlier special grand jury.

In June, 1989, the defendants filed motions to dismiss the new 1989 indictments on the grounds that trials on the 1989 indictments were barred as a subsequent prosecution under the three term rule. Specifically, the defendants contended that at the time Judge Henry dismissed the original indictments, more than three terms had passed since the indictments were returned. Consequently, the State was statutorily prohibited from pursuing the 1989 superseding indictments.

On July 12, 1989, Judge Halbritter heard arguments on the defendants' motion to dismiss the new indictments. In separate orders dated between July 12 and July 31, 1989, Judge Halbritter dismissed the superseding indictments as barred by the three term rule. 2

Consequently, the issue before this Court is to determine whether the indictments dismissed by Judge Halbritter in July, 1989, were "bad or insufficient," as required by W.Va.Code § 58-5-30, so as to allow the State to appeal the dismissal. Simply put, the State argues that because the original indictments were bad due to improper impaneling of the grand jury, and the second indictments were dismissed because three terms had passed from the original 1988 indictment before it was dismissed, the superseding indictments must likewise be bad, thus permitting an appeal by the State. We disagree, and for the reasons stated below, we affirm Judge Halbritter's orders dated July 12, 1989, July 21, 1989, and July 31, 1989, for the eight appellees involved in this appeal.

The underlying purpose of W.Va.Code § 62-3-21 (1989) is to provide a statutory method of guaranteeing the constitutional right to a speedy trial found in Article III, § 14 of the West Virginia Constitution, as well as a legislative declaration of what is a reasonable and proper delay in bringing an accused to trial. Hollandsworth v. Godby, 93 W.Va. 543, 117 S.E. 369 (1923), overruled on other grounds, State ex rel. Sutton v. Keadle, 176 W.Va. 138, 342 S.E.2d 103, 106 (1985). 3 Specifically, W.Va.Code § 62-3-21 (1989) provides that:

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, unless the failure to try him was caused by ... a continuance granted on the motion of the accused....

Our inquiry, however, is concerned with an analysis of the State's right to appeal rather than a review of the three term rule. 4

It is a basic premise of criminal law that the State's right to appeal an adverse ruling rests solely upon specific statutory or constitutional authority. 5 In Carroll v. United States, 354 U.S. 394, 400, 77 S.Ct. 1332, 1336, 1 L.Ed.2d 1442, 1447 (1957), the United States Supreme Court found that:

appeals by the Government in criminal cases are something unusual, exceptional, not favored. The history shows resistance of the Court to the opening of an appellate route for the Government until it was plainly provided by the Congress, and after that a close restriction of its uses to those authorized by the statute. 6

Consequently, absent statutory or constitutional language to the contrary, the State's right to appeal an adverse ruling in a criminal matter is limited.

The West Virginia Legislature has chosen to narrow the State's right to appeal an adverse judgment in a criminal matter to two specific circumstances. 7 West Virginia Code § 58-5-30 (1966) provides, in pertinent part, that:

Notwithstanding anything hereinbefore contained in this article, whenever in any criminal case an indictment is held bad or insufficient by the judgment or order of a circuit court, the State, on the application of the attorney general or the prosecuting attorney, may obtain a writ of error to secure a review of such judgment or order by the supreme court of appeals. (Emphasis added.) 8

Other than the constitutional provision found in Article VIII, § 3 of the West Virginia Constitution permitting an appeal in matters dealing with the public revenue, no other avenue of criminal appeal is available to the State.

The State's right to appeal an adverse criminal ruling was previously discussed in State v. Jones, 178 W.Va. 627, 363 S.E.2d 513 (1987), in which this Court dismissed an appeal as improvidently awarded where the State did not file a petition for appeal within thirty days from the entry of the order dismissing the indictment. Although the Court found that the State had not filed within the statutory time period and made no specific finding on the State's right to appeal, the Court discussed the issue at some length:

[o]ur law is in accord with the general rule that the State has no right of appeal in a criminal case, except as may be conferred by the Constitution or a statute.... Statutes giving the right of appeal to the State are also subject to scrutiny under constitutional double jeopardy principles.

Id. 178 W.Va. at 628-629, 363 S.E.2d at 514. After pointing out that "it is questionable whether an appeal under W.Va.Code, 58-5-30 lies where the issue is something other than a defective indictment," the Court noted that it has been reluctant to judicially enlarge the limited right of a state to appeal in a criminal case. Id. 178 W.Va. at 629, 363 S.E.2d at 515, 516. Thus, since the allegation in the Jones case had nothing to do with the sufficiency of the indictment, the Court intimated the State had no right to appeal. 9

Consistent with our reasoning in Jones, we refuse to judicially enlarge the limited right of the State to appeal in this criminal case. Notwithstanding the encroachment upon the legislative preserve, such...

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7 cases
  • State v. Lewis
    • United States
    • West Virginia Supreme Court
    • 6 Julio 1992 within the thirty-day time limit contained in W.Va.Code, 58-5-30. W.Va.Code, 58-5-30, was again discussed in State v. Adkins, 182 W.Va. 443, 388 S.E.2d 316 (1989), where the State attempted to challenge the trial court's final order dismissing the indictments because the defendant wa......
  • State ex rel. Forbes v. Canady
    • United States
    • West Virginia Supreme Court
    • 13 Junio 1996
    ...rule under 8(a) of the West Virginia Rules of Criminal Procedure, and not upon any defect in the indictment. In State v. Adkins, 182 W.Va. 443, 388 S.E.2d 316 (1989), we refused to broaden the definition of "bad or insufficient" beyond its plain and ordinary meaning. Therefore the State wou......
  • State ex rel. Webb v. Wilson
    • United States
    • West Virginia Supreme Court
    • 15 Febrero 1990
    ...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 t......
  • State v. Valentine
    • United States
    • West Virginia Supreme Court
    • 22 Junio 2021
    ...Id. at 209, 358 S.E.2d at 605. In State ex rel. Webb v. Wilson, 182 W. Va. 538, 390 S.E.2d 9 (1990), we relied upon State v. Adkins, 182 W. Va. 443, 388 S.E.2d 316 (1989), to find that "the three-term rule . . . is activated by an indictment." Id. at 541, 390 S.E.2d at 12.8 Finally, in Stat......
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