*1 above, holds this Court Upon all of the correctly in acted circuit court summary appellee’s motion
granting the determining appel-
judgment and to be defended
lants were not entitled regard appellee with
indemnified According- underlying tort actions. two final Court of order of the Circuit
ly, the 13, County, entered on November
Grant
1995,is affirmed.
Affirmed.
STATE of West Horn,
NELSON, Debra a/k/a Below, Appellee, Petitioner GRIMMETT, Logan
Travis Sheriff Respondent
County, West
Below, Appellant.
No. 23891. Appeals
Supreme 23, April 1997.
Submitted May 1997.
Decided rights appellants thе circumstances herein may under we policy elect to exercise our under determined, your cannot, paying decline to continue "be used as the circuit court therefore, Clearly, appellee did defense coverage extend in this case.” wаive the exclusion. Such an assertion
Debra Nelson to South Carolina. The re- quest, by the Governor of South indicated that Debra Nelson inwas Carolina when she uttered the checks bad and that she had fled that state. Other authenticated documents were also filed which indicated that Debra Nelson had com- mitted crimes South Carolina and was a fugitive from that state. Partain, Forester, George L. Partain & receiving request After of the Gover- Logan, Appellee. for nor of South the Governor of West MeGraw, Jr., General, Attorney Darrell V. Virginia issued a warrant for the arrest of Johnson, Attorney Scott E. Assistant Gener- Nelson, Debra and she was arrested in Lo- al, Charleston, Appellant. gan County. After the arrest the Circuit Court of Lo- PER CURIAM. 16, 1993, gan County on November entered appeal This is an of finding papers State West an order that the extradition Virginia order, proper from an order of the were in Circuit Court that there were crimi- Logan County charges against Nelson, of in a corpus proceed- nal Debra and that ing. person In that Debra Nelson order the circuit court directed was thе named in the Grimmett, papers. Logan County, Accordingly, extradition Travis Sheriff of to circuit discharge Nelson, court concluded that custody from extradition was Debra who priate. inwas Mr. Grimmett’s on an extradi- doing In warrant. so the court conclud- petition Debra appеal Nelson filed a of ed that the support evidence adduced in of the circuit court’s order with this Court on the extradition warrant failed to show that 20,1993. Among things December other she knowingly intelligent- Debra Nelson had and petition claimed that she was entitled to file a ly right during waivеd her crimi- counsel corpus challenging for a writ of habeas proceedings gave nal in South Carolina which Governor’s Rendition Warrant. On March proceeding, rise the extradition that 1994, this Court concluded that Debra Nel- judgments provided which the basis for son corpus hearing was entitled to a habeas proceeding the extradition were void. In the and issued a writ of habeas to the present proceeding the State claims that the Logan County directing Circuit Court that counsel issue was not a matter for the hearing the circuit court conduct a in the circuit court’s consideration a habeas cor- matter.
pus proceeding testing validity 11, 1995, September On the circuit court proceeding. agree, extradition and as a We corpus hearing. conducted a At that consequence, we reverse the decision hearing counsel for Debra Nelson took the court, and we remand this case with position that the documents did not show directions that the circuit court allow the represented by that she had been counsel or proceed. extradition of Debra Nelson proceedings giving waived counsel rise convictions, proceeding
The documents filed in
in-
to the South Carolina
and also
.
position
deprivation
dicate that Debra Nelson was convicted in
took the
that
uttering
judgments
South Carolina of
nine bad checks
сounsel rendered the
void. The
days
jail.
Virginia
produce
and sentenced to 270
The docu- State of West
could not
escaped.
represented by
ments also indicate that she later
evidence that she had been
escape,
After her
proceeding,
shе fled to West
counsel
the South Carolina
and,
magistrate
A
consequence,
South Carolina thereafter
as a
the circuit court at
escape,
proceed-
issued warrant for her arrest for
the conclusion of the habeas
warrant,
ing
judgments giving
and after the issuаnce of the
ruled that the
rise to
void,
requested writing
State of South Carolina
the extradition
were
the State of
extradite
Nelson was entitled to release
Debra
section,
(g)
custody.
In his order the circuit
under subdivision
of this
present
the accused was
stated:
at the time оf the
state
commission
requisition
support
from South
*3
crime,
alleged
and that thereafter he fled
judgments
separate
nine
certified
state,
accompanied by copy
a
the
County,
conviction from Kershaw
of
found,
by
of an indictment
or
information
to the
were submitted
Governor
affidavit,
by
supported
having
in the state
judg-
None of the nine
of West
crime,
by
jurisdiction
copy
or
of an
ments of conviction on their face reflect
magistrate
jus-
a
represented by
affidavit made before
or
that Petitioner was
counsel
there,
togеther
copy
any
tice
with a
of
at the trials where she was convicted. The
judgments
presumptively
thereupon;
are therefore
warrant which was issued
or
by copy
judgment
a
void.
of a
of conviction or a
thereof,
imposed in
sentence
execution
to-
Thе court went on to state that Debra Horn
gether
a statement
the
with
executive
giving
the checks
rise to her
claimed
authority
demanding
state that the
paid
South Carolina convictions had been
off
person
escaped
claimed has
from confine-
proffered
and had
to the court
evidence
bail,
ment or has
the terms of his
broken
paid
prior
four of the checks were
to her
indictment,
probation
parole.
or
The
in-
incarceration, and that South Carolina Code
formation, or affidavit made before the
prohibit
34-11-90
would
incarceration
magistrate
substantially
or
must
they
paid
their checks since
had been
off.
charge
person
having
the
demanded with
present
In
the
the State of
committed
crime under the law of that
Virginia
position
West
takes the
the
state;
copy
indictment,
and the
informa-
circuit court exceeded its constitutional and
tion, affidavit, judgment of conviction or
statutory authority by granting a writ of
sentence must
authenticated
be
the ex-
corpus
cogniza-
based on an issue not
authority making
ecutive
the demand.
in an
corpus prоceed-
ble
extradition habeas
Allen,
In State ex rel. Mitchell v.
ing. Specifically,
position
the State takes the
(1971),
155 W.Va.
whether
this ease is remanded with di-
versed and
state;
peti-
demanding
whether
the State
rections that
circuit court allow
present
state
tioner was
proceed with the extradition of Debra
was com-
at
timе the criminal offense
Nelson.
mitted;
petitioner is the
whether
Reversed and remanded with directions.
papers.
person named in
extradition
*4
in
holding
ex rel.
The
this Court
State
STARCHER, Justice, concurring:
Allen,
challenged in the Su-
v.
was
Mitchell
States, and that
preme
of the United
Court
I
judge
As a triаl
several
encountered
in the case in 1972.
one,
denied certiorari
looking
Court
at
like this
where after
all
cases
Allen,
946,
Sheriff, 406
92
evidence,
Mitchell v.
U.S.
fairly
I
certain that
became
(1972).
S.Ct.
willing give approach creative ap-
chance —because State could have
pealed my right away, actions and there’s a
good chance that the result would have bеen man, young irons, leg shackles and
would have been to Texas. notes in the extradition Court rived, seals and ribbons. festooned with question relating presence to or that the lawyer young The man’s made the creative ques is constitutional absence of counsel a sys- prison Texas argument that the entire question speedy similar trial to recently adjudged unconstitu- had been Allen, tem ex Mitchell v. raised State rel. tional, therefore, per- not extradition was and v. supra, as in ex rel. Mitchell and State necessarily buy I mitted. did Allen, While that supra, the Court does not believe lawyer’s argument, thought I that there was question properly be can determined such possible resolution that would serve a proceedings up justice, young and not break this ends exclusively for the courts of question is Such togeth- life, trying put to he was man’s whiсh state, this case State er. in the first to determine South instance. jail, let him out to I him in our kept So but time, I he had worked some holdings of work. After view prosecu- Allen, him And I told our supra, and let out on bail. rel. v. State ex Mitchell was consider- Belcher, to tell Texas that court suprа, this Court believes tor State young required the County ing the matter. I also Logan Circuit Court of begin making immediately to restitution man granting Debra Nelson the habeas erred in sought payments to Texas. and that the relief which she years, After about paid case, two Texas was off. In the instаnt the third element is missing. The young perfect pressing State is before The man was not a us an citizen- appeal action; judge’s of the circuit we must wagon couple few are. He fell a apply law, the cold By letter of the law. I times, I and I think him up locked once more must concur. got payments, when he behind his but he pay. did I think judge that the probably circuit had good a handle on this situation. mak- While way, story, In a small this is a success ing no claim that angel, the defendant is an judges I help know this State underlying offenses relate to worthless every day. such writе stories What were the checks. I think State could have key ingredients story? to this modest success told the folks in just let’s hold off if and see we can something work First, willing lawyer a was make a creative satisfy out that you will folks and avoid the Second, argument. willing was Perhaps extradition. South Carolina would approach doing justice, take creative have allowed Ms. Nelson do her time law, finding including room within the the Logan County. that, I have done too.