State v. Jones, 17638

• Citation: 178 W.Va. 627,363 S.E.2d 513
• Decision Date: 19 November 1987
• Docket Number: No. 17638,17638
• Court: Supreme Court of West Virginia
• Parties: STATE of West Virginia v. Robert L. JONES.

Page 513

363 S.E.2d 513

178 W.Va. 627

STATE of West Virginia v. Robert L. JONES.

No. 17638.

Supreme Court of Appeals of West Virginia.

Nov. 19, 1987.

Rehearing Denied Feb. 3, 1988.

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.

2. Other jurisdictions, including the federal courts, that have statutes enabling the government to appeal within a certain time limit have held that compliance with the time limit is mandatory.

3. Where the State does not file a petition to appeal with this Court within thirty days from the date of the entry of the order dismissing an indictment as required by W.Va.Code, 58-5-30, the appeal will be dismissed as improvidently awarded.

Susan B. Tucker, Pros. Atty., Darrell W. Ringer, Asst. Pros. Atty., Morgantown, for plaintiff.

Gregory Hinton, Fairmont, for defendant.

MILLER, Justice:

The State of West Virginia, pursuant to W.Va.Code, 58-5-30, appeals an order of the circuit court granting a motion to dismiss a murder indictment after the first two trials had resulted in mistrials because of deadlocked juries. ¹ The court dismissed the indictment on the ground that the defendant, Robert L. Jones, a black male, had been denied equal protection as guaranteed by the Fourteenth Amendment to the United States Constitution. The State argues the trial court applied an incorrect legal standard in ordering dismissal of the indictment and urges reversal of the trial court's ruling. We conclude that the State's appeal is untimely and, therefore, should be dismissed.

As a threshold question, although not raised by the parties, we determine if the State's appeal is timely. Under W.Va.Code, 58-5-30, the State is authorized to appeal in limited circumstances, i.e., where "an indictment is held bad or insufficient." This statute further provides that no appeal shall be allowed "unless the State presents its petition therefor to the supreme court of appeals, or one of the judges thereof, within thirty days of the entry of such judgment or order" dismissing the indictment. ² This same time period is set out in Rule 37(b)(2) ³ of the West Virginia Rules of Criminal Procedure. Here, the State did not file its petition for an appeal until more than six months after the dismissal order was entered. The judgment order was entered on August 28, 1986, and the State's petition was not filed in this Court until March 2, 1987.

We recognized in State ex rel. Maynard v. Bronson, 167 W.Va. 35, 41, 277 S.E.2d 718, 722 (1981), that "the right of the State to ... appeal in criminal cases is limited." In State v. Bailey, 154 W.Va. 25, 173 S.E.2d 173 (1970), the State sought to appeal an order of the circuit court granting the defendant's motion to suppress evidence that was allegedly essential to obtain a conviction. This Court dismissed the appeal as improvidently awarded on the basis that neither Art. VIII, § 3 of the Constitution of West Virginia, ⁴ nor any statutory provision authorized the State to appeal an order granting a criminal defendant's motion to suppress evidence. ⁵

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. E.g., United States v. Wilson, 420 U.S. 332, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1975); People v. Superior Court of Marin County, 69 Cal.2d 491, 72 Cal.Rptr. 330, 446 P.2d 138 (1968); State v. Bellamy, 4 Conn.App. 520, 495 A.2d 724 (1985); Dt. of Columbia v. McConnell, 464 A.2d 126 (D.C.App.1983); State v. Creighton, 469 So.2d 735 (Fla.1985) ; State v. Johnson, 50 Haw. 525, 445 P.2d 36 (1968); 24 C.J.S., Criminal Law § 1659 (1961). Statutes giving the right of appeal to the State are also subject to scrutiny under constitutional double jeopardy principles. This Court declared a statute unconstitutional based on double jeopardy principles which gave the State the right to appeal any criminal case involving the prohibition laws in Ex parte Bornee, 76 W.Va. 360, 85 S.E. 529 (1915). ⁶ The United States Supreme Court has treated this issue at some length in United States v. Wilson, supra.

As to the time period question, we note initially the use of the word "shall" in conjunction with the thirty-day appeal period. Ordinarily, we hold that the use of the term "shall" in a statute means that the legislature intended this to be a mandatory requirement. Underwood v. County Comm'n of Kanawha County, 176 W.Va. 740, 349 S.E.2d 443 (1986); Nelson v. W.Va. Public Employees Ins. Bd., 171 W.Va. 445, 300 S.E.2d 86, 34 A.L.R.4th 438 (1982); Woodring v. Whyte, 161 W.Va. 262, 242 S.E.2d 238 (1978).

In several earlier cases we expressed the view that the appeal had to be brought "within thirty days after the entry of such judgment." State v. O'Brien, 102 W.Va. 83, 85, 134 S.E. 464, 465 (1926). See also, State v. General Daniel Morgan Post No. 548, V.F.W., 144 W.Va. 137, 139, 107 S.E.2d 353, 355 (1959).

Other jurisdictions, including the federal courts, that have statutes enabling the government to appeal within a certain time limit have held that compliance with the time limit is mandatory. E.g., United States v. Hark, 320 U.S. 531, 64 S.Ct. 359, 88 L.Ed. 290 (1944) (decided under forerunner statute); United States v. Martinez, 681 F.2d 1248 (10th Cir.1982); State v. Veazey, 337 So.2d 1163 (La.1976); State v. Schermerhorn, 379 N.W.2d 660 (Minn.App.1986); State v. Reisewitz, 261 N.W.2d 591 (Minn.1977); People v. Voutsinas, 62 A.D.2d 465, 406 N.Y.S.2d 138 (1978); Commonwealth v. Andrews, 251 Pa.Super. 162, 380 A.2d 428 (1977). ⁷

One of the major policy reasons advanced for this rule, other than strict construction, is that the State should not be able to delay the appeal thereby increasing the period the defendant is held subject to prosecution. Implicit in this rationale is the further thought that the State's delay prolongs the embarrassment and humiliation which are attendant to criminal prosecution. United States v. Wilson, 420 U.S. at 343, 95 S.Ct. at 1022, 43 L.Ed.2d at 241. Furthermore, from a practical standpoint, because the appeal is on a very limited issue, the State is not hampered by having to prepare any extensive record in order to meet the time period.

It should also be pointed 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. In the present case, no claim is made that the indictment itself is defective in the traditional sense that it fails to properly charge a crime. We spoke to this point in State v. Bailey, 154 W.Va. at 31, 173 S.E.2d at 177:

"It is equally clear that the provisions of Section 30, Article 5, Chapter 58, Code, 1931, relate only to a writ of error upon application of the State by the Attorney General or the prosecuting attorney to secure a review of a judgment or an order of a circuit court by which an indictment or a warrant in a criminal case has been held to be bad or insufficient and that they do not apply to an order of a circuit court suppressing evidence sought to be introduced upon the trial of an indictment in a criminal case."

Here, the dismissal was on a ground independent of the validity of the indictment. The motion to dismiss was premised upon a claim of selective or discriminatory prosecution based on United States v. Berrios, 501 F.2d 1207 (2nd Cir.1974), and related cases. ⁸ The defendant claimed that as a black person, he was subjected to repeated retrials based on his race. Clearly, this type of allegation had nothing to do with the sufficiency of the indictment.

As we observed in State ex rel. Maynard v. Bronson, supra, because of the limited right of the State to appeal in a criminal case, we have been reluctant to enlarge that right judicially. At issue in Maynard was the prosecution's right by way of an original prohibition in this Court to prevent the circuit court from dismissing a case. The dismissal was based on the failure to try the case within the time period set out in the Agreement on Detainers Act. W.Va.Code, 62-14-1, et seq. We concluded that prohibition could not be used. ⁹ We need not decide the substantive issue of whether this type of dismissal is appealable under W.Va.Code, 58-5-30, since there has been a failure to timely present the appeal within the prescribed thirty-day period. ¹⁰

Thus, we conclude that where the State does not file a petition to appeal with this Court within thirty days from the date of the entry of the order dismissing an indictment as required by W.Va.Code, 58-5-30, the appeal will be dismissed as improvidently awarded.

Appeal dismissed.

1 The initial indictment was handed down in the May, 1980 Term of the Circuit Court of Monongalia County, and the first trial was held in February, 1981. The second trial was held in December, 1982, in Harrison County as a result of the defendant's motion for a change of venue. The case was apparently continued on joint motion until it was set for trial in the May, 1986 Term when defendant moved to dismiss the indictment. The motion was granted by the Circuit Court of Harrison County on August 28, 1986.

2 W.Va.Code, 58-5-30 (1931), 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. No such writ of error shall be allowed unless the State presents its petition therefor to the supreme court of appeals, or one of the judges thereof, within thirty days after the entry of such judgment or order." (Emphasis added.)

3 Rule 37(b)(2) provides as pertinent here:

"When an appeal by the state is...