State v. Brown

Decision Date23 March 1976
Docket NumberNo. CC895,CC895
Citation159 W.Va. 438,223 S.E.2d 193
CourtWest Virginia Supreme Court
PartiesSTATE of West Virginia v. Roger Lee BROWN.

Syllabus by the Court

1. The statute governing the procedure for presenting interlocutory decisions of a lower court to this Court by certificate, being in derogation of the common law, is strictly construed.

2. The question of certifiability of decisions of lower court to this Court is one which goes to the jurisdiction of this Court.

3. Appealable judgments, orders and decrees are not reviewable on certificate.

4. The judgment of a trial court, in dismissing an indictment because of insufficiency, is a final judgment and cannot be reviewed by this Court on certification.

Chauncey H. Browning, Jr., Atty. Gen., Betty L. Caplan, Asst. Atty. Gen., Charleston, for plaintiff.

Larry L. Skeen, Kennad L. Skeen, Lawrence B. Mentzer, Ripley, for defendant.

BERRY, Chief Justice:

This case is here on certificate from the Circuit Court of Jackson County. On February 24, 1975, Roger Lee Brown was indicted by the grand jury of Jackson County for the felony of third offense driving under the influence of intoxicating liquor. The indictment alleged two convictions for driving under the influence of intoxicating liquor within five years immediately prior to the occurrence giving rise to the present charge. The two prior convictions occurred on January 21, 1971, and October 21, 1972. The conviction of October 21, 1972, occurred before the Honorable Gay H. Duke, Mayor of the City of Ripley.

The defendant filed a special plea to the indictment in which he asserted that the conviction by the Mayor of Ripley was unconstitutionally void because theMayor improperly exercised judicial and executive power simultaneously. The Circuit Court of Jackson County sustained the special plea and dismissed the indictment charging a felony.

Following its ruling, the circuit court certified questions to this Court relating to the constitutionality of the statutory authorization for a mayor to act as both the chief executive officer and ex officio justice of the peace, as the questions were raised by the special plea and the various exhibits filed in support thereof.

The statute governing the procedure for presenting interlocutory decisions of a lower court to this Court by certificate, being in derogation of the common law, is strictly construed. Bennett v. General Accident Fire and Life Assurance Corp., 148 W.Va. 338, 135 S.E.2d 96 (1964); State v. DeSpain, 139 W.V. 854, 81 S.E.2d 914 (1954); Carper v. Montgomery Ward & Co., 123 W.Va. 177, 13 S.E.2d 643 (1941). Thus, the question of certificability is one which goes to the jurisdiction of this Court. For this reason, the Court must, on its own initiative, determine whether the requirements of the statutory procedure are met in given case. Leishman v. Bird, 147 W.Va. 525, 129 S.E.2d 440 (1963). In the present case we conclude that certification was improper for two reasons.

Appealable judgments, orders and decrees are not reviewable by certificate. Leishman v. Bird, supra; City Ice & Fuel Co. v. Dankmer, 125 W.Va. 299, 24 S.E.2d 89 (1943); Slater v. Slater, 118 W.Va. 645, 191 S.E. 524 (1937); Saffel v. Woodyard, 90 W.Va. 747, 111 S.E. 768 (1922).

The action of the trial court in dismissing the indictment charging a felony is a final judgment as to such charge and can be appealed by the State. Code, 58--5--30, provides in relevant part:

'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.'

Reading the foregoing statute together with Code, 58--5--2, this Court has previously held that the exclusive avenue for review of an order holding...

To continue reading

Request your trial
5 cases
  • State v. Lewis
    • United States
    • Supreme Court of West Virginia
    • 6 Julio 1992
    ...of decisions of a lower court to this Court is one which goes to the jurisdiction of this Court." Syllabus Point 2, State v. Brown, 159 W.Va. 438, 223 S.E.2d 193 (1976). 3. "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......
  • State v. Vollmer
    • United States
    • Supreme Court of West Virginia
    • 13 Noviembre 1979
    ...or subject matter . . . ." We have held, however, that certification does not lie for the dismissal of an indictment. State v. Brown, W.Va., 223 S.E.2d 193 (1976). We need not assess the parameters in the present case, except to state that the issue at hand does involve a challenge to juris......
  • Bass v. Coltelli
    • United States
    • Supreme Court of West Virginia
    • 12 Diciembre 1994
    ...of decisions of a lower court to this Court is one which goes to the jurisdiction of this Court.' Syllabus Point 2, State v. Brown, 159 W.Va. 438, 223 S.E.2d 193 (1976)." Syllabus point 2, State v. Lewis, 188 W.Va. 85, 422 S.E.2d 807 3. Questions subject to certification pursuant to W.Va.Co......
  • State v. Wertman
    • United States
    • Supreme Court of West Virginia
    • 7 Diciembre 2001
    ...certifiability of decisions of lower court to this Court is one which goes to the jurisdiction of this Court." Syl. Pt. 2, State v. Brown, 159 W.Va. 438, 223 S.E.2d 193 (1976). The questions herein presented arise from a motion for a judgment on the pleadings and order of certification file......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT