State v. Wallace

Decision Date15 June 1999
Docket NumberNo. 25826.,25826.
CourtWest Virginia Supreme Court
PartiesSTATE of West Virginia, Plaintiff Below, Appellant, v. Rebekah Leah WALLACE, Defendant Below, Appellee.

Frederick M. Rohrig, Prosecuting Attorney, Middlebourne, West Virginia, Attorney for Appellant.

David L. Zehnder, Chief Public Defender, Moundsville, West Virginia, Attorney for Appellee. McGRAW, Justice:

This case presents the question of whether an indictment for burglary under W. Va.Code § 61-3-11(a) (1993) must specifically allege that such offense was committed "burglariously." Failing to discern any talismanic significance in such word, we conclude that this common-law pleading requirement did not survive adoption of the West Virginia Rules of Criminal Procedure.

I. BACKGROUND

Defendant was charged on April 7, 1998 by a two-count indictment alleging burglary, W. Va.Code § 61-3-11(a), and petit larceny, W. Va.Code § 61-3-13(b) (1994). Count I of the indictment charged burglary in the following terms:

That on or about the 9th day of March, 1998, in the County of Tyler, State of West Virginia, Rebekah Leah Wallace, committed the felony offense of "Burglary" by breaking and entering, in the nighttime, a dwelling house belonging to Donna Lee Miller, with intent to commit a crime therein, in violation of West Virginia Code Section 61-3-11(a), as amended, against the peace and dignity of the State

Defendant subsequently moved to dismiss Count I of the indictment based on the absence of any assertion that the burglary offense was committed "feloniously and burglariously." After initially taking Defendant's motion under advisement, the circuit court later dismissed the burglary charge prior to trial, explaining that dismissal was appropriate based on our previous decision in State ex rel. Thompson v. Watkins, 200 W.Va. 214, 488 S.E.2d 894 (1997) (per curiam). It is from this dismissal that the State now appeals.

II. DISCUSSION
A. Timeliness of Appeal

As an initial matter, Defendant asserts that the present appeal should be dismissed as improvidently granted because the State allegedly failed to file its petition within the thirty-day period prescribed by W. Va. Code § 58-5-30 (1998).1

The circuit court entered its dismissal order on July 16, 1998. The State subsequently filed a petition for appeal with the clerk of the circuit court on August 13, 1998; however, the petition (together with the record) was not received from the circuit clerk and filed in this Court until September 10, 1998. Based upon these facts, Defendant argues that we have no jurisdiction to hear the State's appeal because the petition for appeal was not directly received by the Court within the applicable appeal period.

We stated in Syllabus point 3 of State v. Jones, 178 W.Va. 627, 363 S.E.2d 513 (1987), that "[w]here the State does not file a petition to appeal with this Court within thirty days from the date of entry of the order dismissing an indictment as required by W. Va.Code, 58-5-30, the appeal will be dismissed as improvidently granted ."

Section 58-5-30 mandates that no appeal "shall be allowed unless the state presents its petition therefor to the supreme court of appeals within thirty days after the entry of... judgment."2 What the statute does not expressly prescribe, however, is the means by which such a petition must be "presented" to this Court.3 Rather, paragraph 2 of § 58-5-30 makes clear that "all the provisions of the other sections of this article shall, so far as appropriate, be applicable to a petition for an appeal under this section...." In apparent recognition of this Court's authority under W.Va. Const. art. VIII, § 3 to expound rules of procedure, W. Va.Code § 58-5-6 (1998) provides that "[p]etitions for appeal shall be filed and processed in accordance with rules of appellate procedure promulgated by the supreme court of appeals." See also W. Va.Code § 58-5-3 (1998) ("A party desiring to appeal ... may file a petition in accordance with rules of appellate procedure promulgated by the supreme court of appeals."). Thus, the method of presentment is governed by, among other rules, the West Virginia Rules of Appellate Procedure.

The West Virginia Rules of Appellate Procedure specify the mode by which a petition for appeal shall be presented to this Court:

(a) Filing With the Clerk. When the appeal is from an order of the circuit court, an original and nine copies of the petition for appeal shall be filed in the office of the clerk of the circuit court where the judgment, decree or order being appealed was entered. The circuit clerk shall note on each copy the date on which the petition for appeal was filed. A docketing statement... shall be attached to the face of the original petition and each of the copies.
(b) Transmission to the Supreme Court. The circuit clerk shall retain one copy of the petition and, within twenty days from deposit of money or bond for costs under paragraph (d), shall transmit the original and eight copies of the petition, along with the trial court record as designated in paragraph (c), to the Clerk of the Supreme Court by certified mail.

W.Va.R.App.P. 4(a) & (b) (emphasis added); see also W.Va.R.Crim.P. 37(b)(3) ("When an appeal by the state is authorized by statute, the petition for appeal shall be filed with the clerk of the circuit court within 30 days after entry of judgment or order appealed from.").

Accordingly, we conclude that an appeal pursued by the State under W. Va.Code § 58-5-30 is timely presented to this Court if the petition for appeal is filed with the clerk of the circuit court where the judgment or order being appealed was entered within 30 days following such entry. Because the State filed its petition for appeal in conformance with Rules 4(a) and 37(b)(3), we find no basis upon which to dismiss the present appeal for want of jurisdiction.

B. Sufficiency of Indictment

The circuit court's ruling in this case is traceable to our decision in State v. Meadows, 22 W.Va. 766 (1883), where we held in Syllabus point 2 that "[a]n indictment for burglary must charge, that the offense was `burglariously' committed; otherwise it is bad." We recently interpreted Meadows to require that "an indictment charging burglary must set out the word `burglary.'" State ex rel. Thompson v. Watkins, 200 W.Va. 214, 218, 488 S.E.2d 894, 898 (1997) (per curiam) (finding harmless error with respect to omission of the word "burglary" from the indictment). The circuit court in this case apparently relied upon the Syllabus (which merely recites Syllabus point 2 of Meadows) rather than the body of our opinion in Watkins,4 since the indictment in question clearly asserts that the charge is "Burglary." Thus, we first address the question of whether the adverb "burglariously"5 must be stated (without alteration) in an indictment charging burglary under W. Va.Code § 61-3-11(a). We conclude that it does not.

Assessment of the facial sufficiency of an indictment is limited to its "four corners," and, because supplemental pleadings cannot cure an otherwise invalid indictment, courts are precluded from considering evidence from sources beyond the charging instrument. Consequently, we afford no deference to a lower court's determinations regarding the sufficiency of an indictment. See Syl. pt. 2, in part, State v. Miller, 197 W.Va. 588, 476 S.E.2d 535 (1996) ("Generally, the sufficiency of an indictment is reviewed de novo.").

The adoption of the West Virginia Rules of Criminal Procedure punctuated a long-evolving trend away from the formalistic and hypertechnical pleading requirements of common-law criminal procedure. As Professor Cleckley stresses, "[these Rules] introduced into West Virginia jurisprudence a new and modern pleading concept." 1 Franklin D. Cleckley, Handbook on West Virginia Criminal Procedure at I-120 (2d ed. 1998 Supp.). Rule 7(c)(1) of the West Virginia Rules of Criminal Procedure now requires only that "[t]he indictment or the information shall be a plain, concise and definite written statement of the essential facts constituting the offense charged."

This reflects the general thrust of the Rules of Criminal Procedure, which are intended "to secure simplicity in procedure, fairness in administration, and the elimination of unjustifiable expense and delay." W.Va.R.Crim.P. 2. Thus, the requirements set forth in Rule 7 "were designed to eliminate technicalities in criminal pleading and are to be construed to secure simplicity in procedure." United States v. Debrow, 346 U.S. 374, 376, 74 S.Ct. 113, 115, 98 L.Ed. 92, 96 (1953). As was aptly noted decades ago, "[o]ne of the laudable reforms of the Federal Rules of Criminal Procedure was to eliminate the necessity for much of the cumbersome claptrap which typically encased the common law indictment." Honea v. United States, 344 F.2d 798, 804 (5th Cir.1965), overruled on other grounds, United States v. Gayle, 967 F.2d 483 (11th Cir.1992)

. Our adoption of a variant of these rules has had similar, if less dramatic, effect. Indictments are now considered "from the broad and enlightened standpoint of common sense and right reason rather than from the narrow standpoint of petty preciosity, pettifogging, technicality or hair splitting fault finding." Parsons v. United States, 189 F.2d 252, 253 (5th Cir. 1951).

This Court has plenary authority to promulgate rules of procedure, which have the force and effect of law. Teter v. Old Colony Co., 190 W.Va. 711, 724-26, 441 S.E.2d 728, 741-43 (1994); Bennett v. Warner, 179 W.Va. 742, 745, 372 S.E.2d 920, 923 (1988). In an analogous context, we have stated that "[t]he West Virginia Rules of Evidence remain the paramount authority in determining the admissibility of evidence in circuit courts." Syl. pt. 7, in part, State v. Derr, 192 W.Va. 165, 451 S.E.2d 731 (1994) (holding that common-law "gruesome photograph" rule was abrogated by adoption of the ...

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