858 S.E.2d 897
W. Va.2021Background
- Harold Radford Porter was indicted in Cabell County on Oct. 31, 2019 on three felony counts (including murder and related charges).
- West Virginia’s "three-term rule" (W. Va. Code § 62-3-21) requires the State to try a defendant within three regular terms of court after indictment or the defendant be discharged, subject to enumerated exceptions.
- Porter identified the January 2020, May 2020, and September 2020 (and then January 2021) terms as the terms counting toward the three-term limit; he filed a motion to dismiss on Jan. 6, 2021 asserting the State violated the rule.
- The Supreme Court of Appeals and circuit courts issued emergency administrative orders during 2020–2021 in response to COVID-19 that suspended or limited jury trials and allowed local judicial emergency closures (affecting January and May 2020 terms and portions of later terms).
- The Cabell County circuit court denied Porter’s motion on Jan. 26, 2021, citing extraordinary COVID-19 conditions; Porter sought a writ of prohibition from the Supreme Court to bar trial.
- The Supreme Court denied the writ, holding that terms during which a judicial emergency curtailed jury trials were not "regular" terms for purposes of the three-term rule, so three regular terms had not yet passed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Porter was entitled to dismissal under the three-term rule | Porter: three regular terms passed after indictment without trial, so discharge required | State: COVID-related court closures and witness sickness/absence excused the terms or otherwise prevented trial | Held: No violation — terms affected by judicial emergency are not "regular" and thus do not count toward the three-term limit |
| Whether a term during which a judicial emergency curtails jury trials is a "regular" term | Porter: those terms are regular and must be counted | State: emergency-affected terms are not full/regular and should be excluded; alternatively invoke witness-sickness exception | Held: A term with declared judicial emergency and curtailed jury trials is not a "regular" term under § 62-3-21 |
| Whether the State could rely on the § 62-3-21 "witness sickness/kept away" exception without identifying specific unavailable witnesses | Porter: State never scheduled trial or identified witnesses, so exception inapplicable | State: pandemic-related public-health conditions effectively prevented witnesses and trials | Held: Court did not accept reliance solely on that exception here; dispositive ruling was that affected terms aren’t "regular" so exceptions need not be resolved |
| Appropriateness of writ of prohibition to prevent trial | Porter: prohibition proper because three-term violation is a legal bar to trial | State: adequate remedy via normal proceedings; no clear legal error to warrant writ | Held: Writ denied — no clear error; trial may proceed because three regular terms have not lapsed |
Key Cases Cited
- State v. Foddrell, 171 W. Va. 54, 297 S.E.2d 829 (W. Va. 1982) (recognizing constitutional right to a speedy trial)
- Good v. Handlan, 176 W. Va. 145, 342 S.E.2d 111 (W. Va. 1986) (three-term rule is legislative speedy-trial standard and limits on excusing terms)
- State v. Carter, 204 W. Va. 491, 513 S.E.2d 718 (W. Va. 1998) (three-term rule results in discharge unless statutory exceptions apply)
- State v. Damron, 213 W. Va. 8, 576 S.E.2d 253 (W. Va. 2002) (application of three-term rule principles)
- State ex rel. Spadafore v. Fox, 155 W. Va. 674, 186 S.E.2d 833 (W. Va. 1972) (terms counted must occur after the term of indictment)
- Ex parte Anderson, 81 W. Va. 171, 94 S.E. 31 (W. Va. 1917) ("regular" terms construed as full and complete terms)
- State ex rel. Hoover v. Berger, 199 W. Va. 12, 483 S.E.2d 12 (W. Va. 1996) (factors governing issuance of writ of prohibition)