STATE OF WEST VIRGINIA EX REL. RALPH A. LORENZETTI, JR., PROSECUTING ATTORNEY OF JEFFERSON COUNTY, Petitioner v. THE HONORABLE DAVID H. SANDERS, JUDGE OF THE CIRCUIT COURT OF JEFFERSON COUNTY, AND ELIZABETH A. SHANTON, Respondents
No. 14-0904
Supreme Court of Appeals of West Virginia
May 20, 2015
ORIGINAL PROCEEDING IN PROHIBITION
WRIT GRANTED
Submitted: March 4, 2015
Filed: May 20, 2015
Lisa A. Hopkins, Esq. General Counsel Dawn E. Warfield, Esq. Associate General Counsel
Shawn R. McDermott, Esq. Mills McDermott, PLLC Martinsburg, West Virginia Counsel for the Respondent
Vincent J. Smith, Esq. Associate General Counsel Amicus Curiae – Glen B. Gainer III, West Virginia State Auditor
JUSTICE BENJAMIN delivered the Opinion of the Court.
CHIEF JUSTICE WORKMAN and JUSTICE LOUGHRY concur and reserve the right to file separate opinions.
SYLLABUS BY THE COURT
- Pursuant to the plain language of
W. Va. Code § 12-3-10b (1996) , each purchase of goods or services made using a state purchasing card in a manner contrary to the provisions ofW. Va. Code § 12-3-10a (2007) or the rules promulgated pursuant to that section involves a distinct offense. W. Va. Code § 12-3-10b (1996) andW. Va. Code § 61-3-24d (1995) each contain elements the other does not, and punishment under these two statutes for conduct arising from the same act or transaction does not violate double jeopardy principles.
Benjamin, Justice:
The petitioner, Ralph A. Lorenzetti, Prosecuting Attorney of Jefferson County (“the State“), seeks a writ of prohibition pursuant to the original jurisdiction of this Court to prohibit enforcement of the September 5, 2014, order of the Circuit Court of Jefferson County, dismissing fifty-three counts of a fifty-four count indictment against respondent Elizabeth A. “Libby” Shanton. Each of the fifty-three dismissed counts alleged that Ms. Shanton used a state-issued purchasing card in violation of
The controversy in this case surrounds the use of a purchasing card (“P-Card“) issued pursuant to West Virginia‘s Purchasing Card Program. The Purchasing Card Program was implemented in 1996 by the Legislature and is administered by the West Virginia State Auditor.
Ms. Shanton was issued a P-Card while she was employed as Dean of Student Affairs at Shepherd University in Shepherdstown, West Virginia. Her responsibilities as Dean of Student Affairs involved organizing student programming, including meals, special events, and giveaways. Following an investigation by the Commission on Special Investigations, see
Ms. Shanton filed three separate motions to dismiss the indictment. These motions attacked each of the fifty-four counts in the indictment on one or more of the following grounds: insufficiency, lack of jurisdiction, and unconstitutionality. On August 27, 2014, the circuit court held a conference call with the parties’ counsel and requested that they submit additional factual information regarding the charges against Ms. Shanton. The State filed a “Response to Factual Inquiries of the Court” on September 4, 2014.5
The circuit court entered an order on September 5, 2014, granting Ms. Shanton‘s motion to dismiss with regard to the counts alleging that Ms. Shanton engaged in fraudulent or unauthorized use of her P-Card in
First, the circuit court determined that each swipe of the P-Card was part of a continuing offense; therefore, because each swipe of the P-Card did not give rise to a distinct offense, Ms. Shanton could only be charged with one violation of
Second, the circuit court determined that the elements of the crime described in counts 2 through 54 overlapped completely with the elements of count 1. The court concluded that double jeopardy prevented charging Ms. Shanton with violating both statutes, and the court dismissed all counts in the indictment but count 1.
Determining that counts 2 through 54 must be dismissed for violating principles of double jeopardy, the circuit court declined to address Ms. Shanton‘s remaining questions of constitutionality regarding these counts. The court also declined to consider the issues raised by Ms. Shanton regarding the sufficiency of the indictment and the circuit court‘s jurisdiction.
The State now seeks a writ of prohibition to prohibit the circuit court from enforcing its September 5, 2014, order dismissing counts 2 through 54 of the indictment.
II. STANDARD OF REVIEW
There are limited circumstances in which the State may request a writ of prohibition in a criminal matter. We have held that
[t]he State may seek a writ of prohibition in this Court in a criminal case where the trial court has exceeded or acted outside of its jurisdiction. Where the State claims that the trial court abused its legitimate powers, the State must demonstrate that the court‘s action was so flagrant that it was deprived of its right to prosecute the case or deprived of a valid conviction. In any event, the prohibition proceeding must offend neither the Double Jeopardy Clause nor the defendant‘s right to a speedy trial. Furthermore, the application for a writ of prohibition must be promptly presented. Syllabus point 5, State v. Lewis, 188 W.Va. 85, 422 S.E.2d 807 (1992).
Syl. pt. 2, State ex rel. Sims v. Perry, 204 W. Va. 625, 515 S.E.2d 582 (1999).
The State contends that the circuit court abused its legitimate powers and deprived the State of its right to prosecute its case against Ms. Shanton. We have held that when a petitioner contends that a circuit court has abused its legitimate powers, the Court will consider five factors in determining whether it will issue a writ of prohibition:
(1) whether the party seeking the writ has no other adequate means, such as direct appeal, to obtain the desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not correctable on appeal; (3) whether the lower tribunal‘s order is clearly erroneous as a matter of law; (4) whether the lower tribunal‘s order is an oft repeated error or manifests persistent disregard for either procedural or substantive law; and (5) whether the lower tribunal‘s order raises new and important problems or issues of law of first impression. These factors are general guidelines that serve as a useful starting point for determining whether a discretionary writ of prohibition should issue. Although all five factors need not be satisfied, it is clear that the third factor, the existence of clear error as a matter of law, should be given substantial weight.
Syl. pt. 4, in part, State ex rel. Hoover v. Berger, 199 W. Va. 12, 483 S.E.2d 12 (1996).
Pursuant to these standards, our review will proceed by examining the error alleged by the State and whether that error constitutes an abuse of the circuit court‘s legitimate powers such that it deprived the State of its right to prosecute the case. Then, we will evaluate whether the Hoover factors weigh in favor of granting the requested writ of prohibition.
III. ANALYSIS
A. The circuit court has abused its legitimate powers and deprived the State of its right to prosecute the case.
The State contends that the question now before the Court is this: “Did the Circuit
1. The circuit court committed clear error by collapsing counts 2 through 54 into a single count.
The Legislature has “substantive power to define crimes and prescribe punishments.” Syl. pt. 3, in part, State v. Sears, 196 W. Va. 71, 468 S.E.2d 324 (1996). The power of courts to convict and sentence defendants in accordance with the crimes proscribed by the Legislature is limited by the double jeopardy clauses of the West Virginia and United States constitutions, which prohibit, among other things, multiple punishments for the same offense.
“is designed to ensure that the sentencing discretion of courts is confined to the limits established by the legislature. Because the substantive power to prescribe crimes and determine punishments is vested with the legislature, . . . the question under the Double Jeopardy Clause whether punishments are ‘multiple’ is essentially one of legislative intent.”
State v. Gill, 187 W. Va. 136, 141, 416 S.E.2d 253, 258 (1992) (quoting Ohio v. Johnson, 467 U.S. 493, 499 (1984)).
In determining whether double jeopardy principles have been violated by the prosecution of multiple violations of the same statute, courts must ascertain whether the offenses are part of the same “unit of prosecution” designated by the Legislature. United States v. Universal C. I. T. Credit Corp., 344 U.S. 218, 221 (1952). The unit of prosecution “determines what separates a single violation of the statute from multiple violations.” United States v. Diana Shipping Servs., S.A., 985 F. Supp. 2d 719, 727 (E.D. Va. 2013); see also State ex rel. Porter v. Recht, 211 W. Va. 396, 399, 566 S.E.2d 283, 286 (2002) (“[T]he analysis of whether a criminal defendant may be separately convicted and punished for multiple violations of a single statutory provision turns upon the legislatively-intended unit of prosecution.” (internal quotation marks omitted)); People v. Simon, 266 P.3d 1099, 1106 (Colo. 2011) (en banc) (defining the unit of prosecution as “the manner in which a criminal statute permits a defendant‘s conduct to be divided into discrete acts for purposes of prosecuting multiple offenses.” (internal quotation marks omitted)); see generally syl. pt. 9, State v. McGilton, 229 W. Va. 554, 729 S.E.2d 876 (2012) (stating that convictions do not violate double jeopardy principles when “the facts demonstrate separate and distinct violations of the statute“).
Whether a particular course of conduct involves one or more distinct “offenses” under the statute depends on this congressional choice, and [f]ew, if any, limitations are imposed by the Double Jeopardy Clause on the legislative power to define offenses. In order to determine the proper unit of prosecution for a disputed statute, a district court is required to begin with the statutory text.
Diana Shipping, 985 F. Supp. 2d at 727 (citation omitted) (internal quotation marks omitted). When examining the statutory text, we look to the operative verb; it defines the offense described in the statute. Porter, 211 W. Va. at 399, 566 S.E.2d at 286 (“[I]t is axiomatic that the operative verb employed in the statute defines the offense . . . .“).
It is unlawful for any person to use a state purchase card, issued in accordance with the provisions of section ten-a of this article, to make any purchase of goods or services in a manner which is contrary to the provisions of section ten-a of this article or the rules promulgated pursuant to that section. Any person who violates the provisions of this section is guilty of a felony and, upon conviction thereof, shall be confined in the penitentiary not less than one nor more than five years, or fined no more than five thousand dollars, or both fined and imprisoned.
It is unlawful for any person to use a state purchase card, issued in accordance with the provisions of section ten-a of this article, to make any purchase of goods or services in a manner which is contrary to the provisions of section ten-a of this article or the rules promulgated pursuant to that section: Provided, That such action is a continuing offense beginning when the purchasing card is issued or obtained by the person and any county where a substantial or material element of the offense occurred has jurisdiction to prosecute the offense. Any person who violates the provisions of this section is guilty of a felony and, upon conviction thereof, shall be
confinedimprisoned in the penitentiary a state correctional facility not less than one nor more than five years, or fined no more thanfive thousand dollars$5,000, or both fined and imprisoned.
Following numerous revisions by the Legislature, Senate Bill No. 267 was passed by legislative act (“the Act“) on March 8, 2014, amending and reenacting
(a) It is unlawful for any person to use a state purchasing card, issued in accordance with the provisions of section ten-a [§ 12-3-10a] of this article, to make any purchase of goods or services in a manner which is contrary to the provisions of section ten-a of this article or the rules promulgated pursuant to that section.
(b) It is unlawful for any person to knowingly or intentionally possess with the intent to use a purchasing card without authorization pursuant to section ten-a of this article or the rules promulgated pursuant to that section.
(c) Any person who violates the provisions of this section is guilty of a felony and, upon conviction thereof, shall be imprisoned in the penitentiary not less than one year nor more than five years, or fined no more than $5,000, or both fined and imprisoned.
(d) A violation of this section may be prosecuted in the county in which the card was issued, unlawfully obtained, fraudulently used, used without authorization, or where any substantial or material element of the offense occurred.
Notably, the amended statute does not include the continuing offense language present in the bill originally introduced to the Legislature. However, the Act contains the following preamble:
AN ACT to amend and reenact . . . § 12-3-10b of said code, all relating to fraudulent or unauthorized use of purchasing cards; ensuring that the courts of West Virginia have jurisdiction over fraudulent or unauthorized use of purchasing cards; establishing jurisdiction; and defining the conduct as a continuing offense.
(Emphasis added).
The parties do not dispute that the controlling version of
Statutory preambles are not part of the enacted law and “cannot control the enacting part of the statute which is expressed in clear and unambiguous terms.” Slack v. Jacob, 8 W. Va. 612, 628 (1875). However, the Court has long held that
[a] preamble may be consulted in some cases to ascertain the intentions of the Legislature. But it is chiefly from the main body the purview of the act, that the will of the Legislature is to be learned; when this is clear and express, the preamble will not avail to contradict it.
Syl. pt. 7, id.
The circuit court, relying on the preamble to the Act, concluded in its September 5, 2014, order:
[T]he recent legislative intent persuades this Court to construe the word “use” to refer to not singular swipes or verifications of the purchasing card, but the overall pattern of use, such that Counts 2 through 54 would necessarily be collapsed into one count of violation of
W.Va. Code §12-3-10b in order to avoid running afoul of double jeopardy principles.
In its brief to this Court, the State maintains that “the Circuit Court‘s reasoning is flawed and clearly erroneous, based on the introductory paragraph of a Senate Bill rather than the actual language of the revised statute.” The State asserts that the language of
Ms. Shanton contends that the circuit court correctly interpreted the statute and that it did not err by collapsing counts 2 through 54 of the indictment into one count. She proposes that “[l]ooking at the text of either the original statute under which [she] was charged or at the amended statute, the text does not express a clear indication of whether the offense is of a continuing nature.” She insists that “to determine whether the offense is of a continuing nature, a court must necessarily engage the rules of statutory interpretation.” Ms. Shanton argues that “the operative verb [‘use‘] and unit of prosecution would support a reading that a violation of § 12-3-10b is a continuing offense and that [she] can only be charged once for a [sic] alleged continuing course of conduct.”
Upon our review of the circuit court‘s order, we observe that the circuit court has skipped the vital first step in construing a statute: making a determination that the statute is ambiguous. “A statute is open to construction only where the language used requires interpretation because of ambiguity which renders it susceptible of two or more constructions or of such doubtful or obscure meaning that reasonable minds might be uncertain or disagree as to its meaning.” Hereford v. Meek, 132 W. Va. 373, 386, 52 S.E.2d 740, 747 (1949). “Where the language of a statute is free from ambiguity, its plain meaning is to be accepted and applied without resort to interpretation.” Syl. pt. 2, Crockett v. Andrews, 153 W. Va. 714, 172 S.E.2d 384 (1970); see also syl. pt. 2, Mace v. Mylan Pharm., Inc., 227 W. Va. 666, 714 S.E.2d 223 (2011) (“‘“A statutory provision which is clear and unambiguous and
Upon our review of
It is unlawful for any person to use a state purchase card, issued in accordance with the provisions of section ten-a of this article, to make any purchase of goods or services in a manner which is contrary to the provisions of section ten-a of this article or the rules promulgated pursuant to that section.
Parsing the relevant statutory text according to the rules of grammar, we find that “use” acts as a transitive verb. All transitive verbs have objects, and the object provides the context for the transitive verb. The Chicago Manual of Style 5.96, at 229 (16th ed. 2010); see also State v. Castleberry, 293 P.3d 757, 764 (Kan. Ct. App. 2013) (“Focus on the object . . . is therefore critical to giving full effect to the term “use.“); Pizzo v. State, 235 S.W.3d 711, 721 (Tex. Crim. App. 2007) (“[A] transitive verb . . . requires a direct object to complete the meaning of the sentence.“). Here, the object of the transitive verb is “purchase.” As used in the statute, “purchase” is a singular noun defined as “an instance of buying.” Black‘s Law Dictionary 1429 (10th ed. 2014). Thus, the effect given to the transitive verb “use” by the singular object “purchase” is to limit “use” to a singular event. In other words, as it is employed in the statute, “use” can only be defined as a single incident of employing a P-Card. Therefore, each purchase made in violation of the statute constitutes a separate chargeable offense and a distinct unit of prosecution. Had the Legislature intended otherwise, it could have replaced the singular object with the plural object “purchases” or included language specifying that the unlawful “use” takes place over a period of time. See, e.g.,
Our reasoning here echoes our analysis in a comparable case, State v. Green, 207 W. Va. 530, 534 S.E.2d 395 (2000). In Green, the defendant obtained money orders for $40 each which she then altered to show $400 each, and she forged the endorsements on the money orders. Id. at 533, 534 S.E.2d at 398. She presented the money orders to a bank in Huntington, West Virginia, which exchanged them for money. Id. The defendant was indicted on thirty-two counts of forgery, uttering, and obtaining goods by false pretenses. Id. at 532, 534 S.E.2d at 397. She entered into a plea deal whereby the State dismissed all of the counts of forgery and obtaining goods by false pretenses
Following conviction, the defendant filed a habeas petition for post-conviction relief with this Court, “claiming that her consecutive sentences violated double jeopardy and proportionality principles.” Id. The Court ordered the circuit court to conduct an omnibus hearing. Id. At the hearing, the defendant testified that, under the language of the controlling statute, “this was one crime [not ten]. I passed these money orders as a set of ten with one teller with one deposit slip. It was one transaction.” Id. The circuit court concluded “that the conduct encompassed by the ten pleaded-to counts of the
indictment were part of one continuous transaction, thus warranting relief.” Id. (internal quotation marks omitted).On appeal, this Court disagreed and reversed the circuit court, concluding that the lower court had misconstrued the controlling statute,
In reaching this conclusion, the Green Court relied on the same rules of grammar that apply in the present case. In Green, the unit of prosecution was controlled by the operation of the transitive verb “utter,” which means “to put or send . . . into circulation.” Black‘s Law Dictionary 1781 (10th ed. 2014). “Writing,” the object of the transitive verb, provides the context for interpreting the transitive verb. The Court determined that the Legislature used a singular noun as the object of the transitive verb. Use of a singular noun provides the context for “utter.” In that context, as the Court concluded, the statute can only mean that each writing uttered in Green gave rise to one violation of
Ms. Shanton asserts that State ex rel. Porter v. Recht, 211 W. Va. 396, 566 S.E.2d 283 (2002), which distinguishes itself from Green, is directly on point and supports her position. In Porter, the defendant was charged with twenty counts of false swearing. 211 W. Va. at 398, 566 S.E.2d at 285. These charges arose from two affidavits signed by the defendant that were each comprised of ten separate statements. Id. The State alleged that each separate statement—twenty in all—constituted separate violations of
In Porter, the State argued that according to Green, the use of the word “any” in
In determining whether the Legislature intended each false statement included in an affidavit, or the entire affidavit as a whole, as the unit of prosecution under the false swearing statute, we must look to the gravamen of the offense of false swearing. Rather than the making of the individual false statements, it is the act of willfully swearing to the truthfulness of those statements while under oath, whether they be singular or multiple in number, that is the essence of the charge of false swearing under
West Virginia Code § 61–5–2 . Given the mechanics of executing an affidavit, the act of swearing to the veracity of the statement(s) set forth cumulatively within the document occurs after the affidavit, complete with averments, has been prepared for the affiant‘s signature. While the signature is not an equivalent of the oath, it is the method by which the affiant indicates that he has sworn to the veracity of the statements set forth above his signature.
Id. at 399–400, 566 S.E.2d at 286–87. Accordingly, the Court held, “An affiant who commits the act of swearing to the veracity of one or more matters set forth in an affidavit may only be charged with a single count of false swearing within the meaning of
Ms. Shanton insists that Porter supports her position that “the operative verb ‘to use’ a state purchase card . . . encompasses any and all purchases of ‘goods or services‘” and that “[i]t is not a single use of the state purchase card that is an offense, but rather the person‘s overall use of the state purchase card, if such use is in a manner contrary to the code or rules.” We disagree.
Green and Porter are distinguished by the operative verbs used in the statutes at issue in those cases. In Green, the operative verb “utter” is transitive; in Porter, the operative verb “swear” is intransitive and means “[t]o take an oath.” Black‘s Law Dictionary 1677 (10th ed. 2014). “An intransitive verb does not require an object to express a complete thought . . . .” The Chicago Manual of Style 5.96, at 229 (16th ed. 2010). While consideration of words in the statute other than the operative verb—specifically, the direct object of the verb—was essential in ascertaining the meaning of the transitive verb in Green, the opposite was true in Porter. Because the operative verb in the present matter, which defines the offense, is transitive rather than intransitive, the analysis in Green is comparable, while the analysis in Porter is not.
Although we conclude that
The circuit court erred by applying a meaning to
Syllabus point 4 of Ballard v. Dilworth, 230 W. Va. 449, 739 S.E.2d 643 (2013), provides:
“‘An indictment is sufficient under Article III, § 14 of the West Virginia Constitution and
W.Va. R.Crim. P. 7(c)(1) if it (1) states the elements of the offense charged; (2) puts a defendant on fair notice of the charge against which he or she must defend; and (3) enables a defendant to assert an acquittal or conviction in order to prevent being placed twice in jeopardy.’ Syl. Pt. 6, State v. Wallace, 205 W.Va. 155, 517 S.E.2d 20 (1999).” Syl. Pt. 5, State v. Haines, 221 W.Va. 235, 654 S.E.2d 359 (2007).
Counts 2 through 54 all accuse Ms. Shanton of committing the offense of fraudulent or unauthorized use of a P-Card in violation of
2. The circuit court committed clear error by dismissing every count alleging a violation of W. Va. Code § 12-3-10b .
As discussed supra, the double jeopardy clause prohibits multiple punishments for the same offense. Syl. pt. 1, Conner, 160 W. Va. 680, 238 S.E.2d 529. We held in syllabus point 8 of State v. Zaccagnini, 172 W. Va. 491, 308 S.E.2d 131 (1983), that “[w]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not.” Accord Blockburger v. United States, 284 U.S. 299, 304 (1932). This test is “traditionally regarded as ‘a rule of statutory construction . . . [based on] . . . [t]he assumption underlying the rule . . . that [the Legislature] ordinarily does not intend to punish the same offense under two different statutes.‘” Gill, 187 W. Va. at 142, 416 S.E.2d at 259 (first two alterations in original) (quoting Whalen v. United States, 445 U.S. 684, 691–92 (1980)). However, the test does not apply where
the [L]egislature has made a clear expression of its intention to aggregate sentences for related crimes. If no such clear legislative intent can be discerned, then the court should analyze the statutes under the test set forth in Blockburger to determine whether each offense requires an element of proof the other does not. If there is an element of proof that is different, then the presumption is that the [L]egislature intended to create separate offenses.
Syl. pt. 8, in part, id.
Below, the circuit court did not make any findings as to Legislative intent, instead skipping directly to applying the Blockburger test. Pursuant to Blockburger, the circuit court determined that the charges against Ms. Shanton alleging violations of both
[T]his [c]ourt discerns no substantial difference between one who acts with specific intent to deprive another of his property using false statements, and one who uses a purchasing card in a manner contrary to the rules of governing such use, where such use includes the verification that said use was permitted (thus in so doing, employing the false representation that such use was permitted). The other elements of these statutes,
West Virginia Code §61-3-24d andWest Virginia Code §12-3-10b(a) , align . . . . Thus, this Court agrees with the defendant that [she] can only be charged with either a violation of Section 12-3-10b or a violation ofW. Va. Code §61-3-24d .
(Internal quotation marks omitted). In seeking this writ, the State asserts that it the circuit court erred by dismissing counts 2 through 54 of the indictment.
In our de novo review, we begin by examining the factual allegations contained in the indictment. Count 1 alleges that Ms. Shanton committed the offense of fraudulent schemes in violation of
The first step of the Gill analysis requires courts to determine whether the Legislature expressed clear intent that actions violating both
(a) Any person who willfully deprives another of any money, goods, property or services by means of fraudulent pretenses, representations or promises shall be guilty of the larceny thereof.
(b) In determining the value of the money, goods, property or services referred to in subsection (a) of this section, it shall be permissible to cumulate amounts or values where such money, goods, property or services were fraudulently obtained as part of a common scheme or plan.
(c) A violation of law may be prosecuted under this section notwithstanding any other provision of this code.
In State v. Coles, 234 W. Va. 132, 763 S.E.2d 843 (2014), the Court examined
The Legislature has made clear that the fraudulent scheme offense under
W. Va. Code § 61-3-24d (1995) (Repl.Vol.2010) is a separate offense that may be prosecuted in addition to any other offense under the Code. Therefore, double jeopardy principles do not preclude a conviction and sentence . . . for any other offense arising out of the same transaction or occurrence.
(In part). However, Coles was decided thirteen days after the circuit court‘s order was entered in this case. At the time the order was entered, syllabus point 7 of State v. Rogers, 209 W. Va. 348, 547 S.E.2d 910 (2001), set forth the controlling law:
The provision in
West Virginia Code § 61–3–24d (1995) (Repl.Vol.2000) [defining the crime of larceny by fraudulent scheme] found in subsection (c), which reads, “A violation of law may be prosecuted under this section notwithstanding any other provision of this code,” does not express a clear legislative intent to create a separate and distinct offense, with separate, additional punishment for the same acts.
Because Coles was decided after the circuit court entered the order on appeal, Rogers must control in this case. Coles cannot be applied retroactively because doing so would permit
Because Rogers controls, we are constrained by the holding in syllabus point 7 to find no clear legislative intent in
statute was intended to provide a separate punishment for the same acts giving rise to a violation of another statutory provision. Therefore, our analysis must continue on to the second part of the analysis set forth in syllabus point 8 of Gill: application of the Blockburger test. Under this test, if each offense requires an element of proof the other does not, double jeopardy principles are not offended by charging the defendant with both crimes.
The full text of
The circuit court did not discern any difference between the elements of the two crimes. This conclusion is clearly erroneous. Unlike
We conclude that both
B. The writ of prohibition should issue
Hoover requires that the Court consider five factors in determining whether it should issue a writ of prohibition. Syl. pt. 4, Hoover, 483 S.E.2d 12, quoted supra Part II. The parties dispute whether the factors weigh for or against granting the writ.
First, Ms. Shanton asserts that the State may seek a direct appeal, and that this weighs against granting the writ. She claims that a direct appeal is available pursuant to
We disagree with Ms. Shanton‘s assertion that the circuit court dismissed counts 2 through 54 of the indictment for being “bad or insufficient.” In Forbes, the Court explained that
[a]n indictment is bad or insufficient for purposes of analysis under
W. Va.Code 58–5–30 when within the four corners of the indictment it: (1) fails to contain the elements of the offense to be charged and sufficiently apprise the defendant of what he or she may be prepared to meet; and (2) fails to contain sufficient accurate information to permit a plea of former acquittal or conviction.
197 W. Va. at 41, 475 S.E.2d at 41 (citing Russell v. United States, 369 U.S. 749, 763–64 (1962)). The circuit court‘s order does not indicate that the indictment was bad or insufficient. Additionally, the order does not include any findings that the indictment failed to contain all of the elements of the offense addressed therein, that the indictment failed to apprise Ms. Shanton of what she must be prepared to meet, or that the indictment failed to contain sufficient accurate information to permit a plea of former acquittal or conviction. It is clear that this indictment was not dismissed for being bad or insufficient. See id. (“[B]ecause there is no contention that the indictment failed to contain all the elements of the offense of malicious assault, or that it did not sufficiently apprise the defendant of what he was prepared to meet, or that it failed to contain sufficient accurate information to permit a plea of former acquittal or conviction, then the potential dismissal of the indictment has nothing to do with its being bad or with its sufficiency.“). Thus,
The second Hoover factor—whether the petitioner will be damaged or prejudiced in a way that is not correctable on appeal—also weighs in favor of the State. The State would be foreclosed from challenging the dismissal of the counts on appeal following trial. See Lewis, 188 W. Va. at 89, 422 S.E.2d at 811 (“[T]he State‘s right to an appeal in a criminal case is contained in
The third Hoover factor, which involves the determination of whether the circuit court committed clear error as a matter of
The fourth Hoover factor—whether the error is an oft repeated error—does not weigh in favor of granting the writ. Neither party has alleged that
Finally, the fifth Hoover factor, which weighs in favor of granting a writ of prohibition where an issue of first impression is presented, is supportive of the State‘s position. As the State points out in its brief,
In summary, the first, second, third, and fifth Hoover factors weigh in favor of granting the State‘s requested writ of prohibition. Pursuant to Hoover, we conclude that the State is entitled to the writ it seeks.
IV. CONCLUSION
For the reasons set forth above, we conclude that the circuit court has abused its legitimate powers and denied the State the right to prosecute its case against Ms. Shanton. Further, we conclude that the Hoover factors weigh in favor of granting the requested writ of prohibition to prohibit enforcement of the circuit court‘s order entered September 5, 2014. Accordingly, we grant the writ, vacate the September 5, 2014, order, and remand this case for further proceedings consistent with this opinion.
Writ granted.