State v. Hutton, 14-0603

• Decision Date: 16 June 2015
• Docket Number: No. 14-0603,14-0603
• Court: West Virginia Supreme Court
• Parties: State of West Virginia v. Orville M. Hutton

State of West Virginia
v.
Orville M. Hutton

No. 14-0603

Supreme Court of Appeals of West Virginia

June 16, 2015

BENJAMIN, Justice, dissenting:

I dissent to the majority opinion because I do not believe that the English common law writ of coram nobis continues in force in West Virginia. Also, even if the common law writ of coram nobis is available in this State, I do not believe that it provides relief to the petitioner.

1. The English common law writ of coram nobis does not continue in force in West Virginia. This issue is governed W. Va. Code § 2-1-1 (1923), which provides:

The common law of England, so far as it is not repugnant to the principles of the constitution of this state, shall continue in force within the same, except in those respects wherein it was altered by the General Assembly of Virginia before the twentieth day of June, eighteen hundred and sixty-three, or has been, or shall be, altered by the Legislature of this state.

Under our law, "[w]here the meaning of a statute is clear and its provisions are unambiguous, this Court will not undertake to construe and interpret it, but will apply the statute as its exact terms require." Syl. pt. 2, Pocahontas Co. v. Dep't of Mines, 137 W. Va. 864, 74 S.E.2d 590 (1953). The provisions of W. Va. Code § 2-1-1 are plain and should be applied as written.

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According to W. Va. Code § 2-1-1, the common law of England, so far as it is not repugnant to our State Constitution, shall continue in force in this State "except in those respects wherein [the English common law] was altered by the General Assembly of Virginia before [June 20, 1863]." The writ of coram nobis was part of the common law of England in 1863. However, the common law writ was altered by the General Assembly of Virginia by statute in 1849 with the enactment of Va.Code, c. 181. Regarding this statute, the Supreme Court of Virginia explained that "[a]s a common law writ, coram vobis has been substantially limited by the General Assembly through Code § 8.01-677" (a successor to the 1849 statute)."¹ Neighbors v. Commonwealth, 650 S.E.2d 514, 517 (Va. 2007). That court also has indicated that "[i]n Virginia, we have by statute provided for a proceeding by motion to correct any clerical error or error in fact for which a judgment or decree may be reversed or corrected, as a substitute for the common law writ of error coram vobis, sometimes called coram nobis." Blowe v. Peyton, 155 S.E.2d 351, 356 (Va. 1967) (citation and internal quotation marks omitted). It is clear to me then that the General Assembly of Virginia altered the common law writ of coram nobis before June 20, 1863, by substantially limiting the writ and substituting a motion in place of the writ. Therefore, according to the plain terms of W. Va. Code § 2-1-1, the common law writ of coram nobis did not continue in force in this State. Instead, this State adopted the Virginia statute that substituted a motion for the writ of coram nobis. See syl. pt. 3, in

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part, Curtis v. Railway Co., 68 W. Va. 762, 70 S.E. 776 (1911) (holding that specific judgment was "reviewable, formerly by a writ of error coram nobis, now by motion, and by appeal to this Court).

The majority opinion attempts to get around the fact that the Virginia statute altered the common law writ of coram nobis by asserting that the Virginia statute was a codification of Virginia's existing practice of permitting relief either by a writ of coram nobis or by motion. While this may very well be the case, it is not relevant to a determination of whether the common law writ of coram nobis continued in force within this State after June 20, 1863, pursuant to W. Va. Code § 2-1-1. This code section clearly provides that the common law of England, not Virginia, shall continue in this State except in those respects wherein it was altered by the General Assembly of Virginia prior to June 20, 1863. I do not believe that it can be disputed that the English common law writ of coram nobis was altered by the enactment of the Virginia statute in 1849. At the very least, the writ was altered by the fact that it became simply one option by which a defendant could seek relief from a fact-based error. Another option was that the defendant could seek such relief by motion. Also, despite the majority opinion's finding to the contrary, I believe that the Virginia statute altered the English common law writ by substantially limiting it as stated by the Virginia Supreme Court in Neighbors, supra. Therefore, I conclude that, pursuant to W. Va. Code § 2-1-1, this State did not adopt the English common law writ of coram nobis. Instead, we adopted the Virginia statute that

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altered the common law writ. Consequently, when our Legislature repealed W, Va. Code § 58-2-3, no common law writ of coram nobis remained.

2. The majority should not have created a novel writ of coram nobis that is foreign to our jurisprudence. Even if I accepted the majority opinion's finding that a common law writ of coram nobis exists in this State, I would base the...