State Ex Rel. Shorter v. Hey

S.E.2d 51 Virginia, ex rel. STATE of West

Frank SHORTER

v. HEY, Judge, Circuit

Honorable John County. Kanawha

Court of Virginia, ex rel.

STATE of West YERKES

Lester HEY, Judge,

Honorable John Circuit County. Kanawha

Court of Virginia, ex rel.

STATE of West

Michelle SHORTER HEY, Judge,

Honorable John Circuit County.

Court of Kanawha

Nos. 15085.

Supreme Appeals Virginia.

March 1981.

Concurring Opinion March 1981. April

Rehearing Denied 1981.

Dissenting Opinion J.,

Neely, opinion. and filed concurred

McGraw, J., dissented filed J., Harshbarger, joined.

in which

Boettner, Campbell Grego- & Crаne Charleston, Shorters, for ry Campbell, J. Relators. Clifford, Dorsey and Michael T.

John E. Charleston, for Yerkes Relator. Roark, Atty., Frances W. James E. Pros. Charleston, McCoy, Atty., Pros. Asst. respondent.

McHUGH, Justice: Shorter, actions, peti- Frank these 4, 1980; Lester W. tion filed December Yerkes, Jr., by petition filed December Shorter, 1980; by petition Michelle 16, 1980, prohibit filed December seek Hey, of the respondent, Judge John County, of Kanawha Circuit Court of the Virginia, conducting a trial charged in an indict- upon offenses relators against the relators returned at the ment Jury May 1980 term Grand County, West of Kanawha Circuit Court Virginia. Decem- of this Court entered

By orders 9, 1980, and Decem- December ber directing issued rules were ber why writs respondent to show against not awarded prohibition should respondent, filed Upon him. motion of Court, by order en- January 22, 1981, consolidated the January tered argument petitions purposes three and submission. May Sep- January, Monday second are before

Accordingly, these actions relators, 51-2-lm. tember. W.Va. petitions of upon the Court all respondent, answer consolidated record indi- petitions assert and the The record, transcript of including a matters of cases were contin- cates that the relators’ 17, 1980, hearing in the Circuit September 1980 May ued from County, and of Kanawha judge had other court because the term of argument of coun- law and memoranda of in the remainder of the matters scheduled sel. further, and, judge in- May that the term take a attend a seminar and then tended to relators Frank assert that petitions vacation. Yerkes, were, Jr. on Lester W. Shorter 27, 1980, 28, 1980, February February subsequently for the relators Counsel upon warrants issued respectively, arrested of Kanawha in the Circuit Court filed by Magistrate Burl February on asserting that the rela- County pleas in bar County, Virgi- West of Kanawha (1) Holbrook prosecuted because tors should not be charged The warrants Shorter nia. during May the they were not tried by robbery of vio- with offenses Yerkes and, (2) the relators nor the term neither indicates that Michelle The record lence. the cases be ‍‌​​​​​‌​‌‌​‌‌​​‌‌‌​​​‌​‌‌‌‌​‌‌‌​​​​‌​​​‌​​‌​‌‌‌‌‍continued to State moved that charged an offense at was not with Shorter pleas These September the 1980 term. n that time. by judge. denied the trial bar were $50,000.00 for initially set at Bond was prohibition proceeding, the Fox, Judge L. II of Fred Frank Shorter judge that the trial abused relators contend County, West Court of Marion the Circuit discretion, pursuant to the decision of his $50,000.00for Lester Yerkes Virginia, and ex rel. Holstein v. Ca this Court State Judge Casey Patrick of the Circuit (1980) 265 S.E.2d 530 sey, County, Virginia. Kanawha West Court of continuing cases the relators’ without May Sep from the 1980 to the good cause during May the grand jury, The 1980 term. The relators further tember of Kanawha term of the Circuit Court that, rela contend inasmuch as neither the County returned indictment No. CR-80-F- continuance, the for a tors nor State moved Shorter, relators, charging Frank error in the trial court committed continu Shorter, Yerkes, Jr. and Michelle Lester W. ing upon the relators’ cases its own motion. robbery by violence. with two counts of Accordingly, the relators seek to dis be hearing was held On prosecution.1 charged from further Judge Hey John of the Circuit Court before respondent good cause contends Virginia, at County, of Kanawha West for the continuance of the relators’ existed indicated it hearing which the trial court September term. cases to the More- relators for grant would motions of the over, respondent denies that the rela- Furthermore, over the ob- separate trials. discharged tors should be from further exceptions counsel for the jections and of prosecution and asks this Court to recon- motion, relators, Judge Hey, upon his own sider its Holstein. Septem- continued the relators’ cases to court, At issue in this action is sеtting the cases ber 1980 term of 62-3-1, that, providing good unless The terms for trial on November shown, a criminal defendant shall be County begin the of court for Kanawha Virgi- proceedings at rules in the priority or in which the in West 1. Criminal cases have a terminated, docketing together court. W.Va. nia the docket of a circuit actions were Code, 56-6-1, provides as follows: as new cases those not on docket at court, shall, every previous Before a circuit under control of the term of term. He exercising jurisdiction court, other court of record days; certain and the set the cases to law, hearing at in the trial or of actions shall be called and the cases on it tried docket following clerk shall make out a docket of the order, disposed of for the term in that State; First, pending, cases secondly, cases of the wit: may good except that the court cause take actions, the order in motions and up any case out of turn. filed, which the notices of the motions were grant he has no of court in which his indictment and there been in the same term tried statutory provision cause. This we a continuance for is indicted. to as the one-term rule.2

shall refer stated, Holstein, that the This Court 62- is for a is W.Va. determination what Alsо to be considered that, 3-21, subject enumerated providing a criminal defendant shall be the sound discretion of trial court.

exceptions, However, may not tried such a continuance not be discharged granted present- pro court after the trial but within three terms of forma ment, appeal requested by party from an inferior the trial indictment must be Furthermore, statutory provision ruling. we shall must This court make a tribunal. rule.3 refer to as the three-term this Court stated that inasmuch as Virginia has Legislature determined Casey, rel. su ex Holstein periods what time constitute a denial of indicted pra, the defendant was trial, defendant, uрon delay term, 1979, May felony for the offense prejudice. need not actual show pre-trial stealing a tractor. At a confer August 23, held which no Thomas Miller dissented in Hol- ence Justice 62-3-1, stating judge present, was but conference stein defendant, legislative by the not be as a com- apparently was attended should read counsel, prosecutor, charge against his and a a secre to dismiss the a de- court mand 1980, where, 9, cause, tary assigned January the trial a trial is as fendant absent 1979, 29, The defendant’s November not held the same term an indict- date. dismiss, to for lack of trial in the ment is returned. He stated that in such motion circumstances, charge and of same term of indictment denial the should not be trial, speedy by judge.4 compel was the and the a denied dismissed defendant could by mandamus. Court, Holstein, granted of This a writ prohibition prevent prosecution Miller a to further also concluded that it is Justice Spe- right of the of to a upon the defendant indictment. violation the defendant’s that, 62-3-21, the cifically, speedy this Court held to trial under Va.W. Code, 62-3-1, (not defendant entitled rule such a violation under W.Va. a is three-term W.Va.Code, 62-3-1, rule) prosecution to from the discharged be forever one-term express statutory by language if not bеen in the term as which man- he has tried same Code, 62-3-1, verdict; every person charged provides, part, 2. as fol- in their W.Va. justice a with a misdemeanor before of the lows: city police peace, judge, or other inferior any county, in misdemeanor, When an indictment is found tribunal, and has found who therein been felony against person a a or guilt guilty appealed and has his conviction of accused, custody, appear or if the he record, of shall be and sentence to a court voluntarily, discharge shall, recognizance, of his or discharged prosecution from further forever be a cоn- unless shown for against offense in the for the set forth warrant tinuance, same be tried at the term. him, having appealed if after his such convic- sentence, regular be Code, 62-3-21, tion and there three provides as 3. W.Va. follows: trial, a terms of such court without unless presentment Every person charged by or try to for one of the causes failure him was misdemeanor, felony with or indictment a relating proceedings hereinabove set forth competent juris- and remanded to a court indictment. on trial, discharged be forever diction shall offense, be from for the if there 4.U.S.Const., VI, provides, part, as amend. regular three terms of such after follows: presentment is is made or indictment him, against prosecutions, accused "In all criminal found without unless public try insanity; enjoy right speedy to a failure to him caused his shall was trial_” being State enticed or witnesses for the Va.Const., Ill, 14, provides, part, attending by kept away, prevented art. § or from W. accident; con- sickness or as follows: inevitable misdemeanors, crimes, granted unless ac- “Trials of tinuance on the motion of the cused; by jury jail, provided, escaping shall be his from herein otherwise reason of men, public, recogni- de- failing appear according without unreasonable twelve or zance, his agree lay. inability jury or of the ..."

254 discharged Accordingly, the defendant be is of the dates W.Va.Code, 62-3-1, prosecution. further The outer whereas provides cannot boundary beyond statutory right which a defendant defendant with a statutory indictment, prosecuted, subject to certain to a trial in the term of his it is W.Va.Code, 62-3-21, exceptions, not rather than W.Va. Code, 62-3-1, legislative adop 62-3-1.5 which is the ordinarily tion or declaration of what con relies majority Holstein speedy stitutes a meaning trial within the premise that is associ- W Va. U.S.Const., W.Va.Const., amend. VI and ated with a criminal defendant’s constitu- Ill, art. Lacy, State v. 232 S.E.2d § right tiоnal to a trial. this re- 519, (W.Va.1977); 522 State ex rel. Stines gard, majority Wright, cites v. State Locke, 292, 443, v. 159 W.Va. 220 S.E.2d 715, (1930); 108 W.Va. 152 S.E. 743 State (1975); Wood, 446 State ex rel. v.Wren Damron, v. 87 ex rel. Chambers ‍‌​​​​​‌​‌‌​‌‌​​‌‌‌​​​‌​‌‌‌‌​‌‌‌​​​​‌​​​‌​​‌​‌‌‌‌‍W.Va. 32, 36, 479, 156 W.Va. 190 S.E.2d 482 189, (1920); Jones, 104 S.E. 490 State v. 84 (1972); Trovato, City Town Star 155 85, (1919); and, 99 271 W.Va. S.E. State v. 253, 257, 560, (1971); W.Va. 183 S.E.2d 562 278, Swain, (1917). 81 W.Va. 94 142 S.E. Kramer, Farley State ex rel. 153 W.Va. cases, 159, however, 170, 106, (1969); three of those Wright, 169 S.E.2d 113 Swain, defendant, it was the ex rel. DeBerry, Jones Smith v. 146 W.Va. State, sought (1961); rather than the 120 who a contin- S.E.2d 506 State v. Underwood, 166, 169, 130 uance. The defendants in those W.Va. cases S.E.2d (1947); Godby, moved for continuances Hollandsworth v. because of the ab- 543, 546, witnesses, and, (1923); W.Va. consequently, sence of S.E. Ex right Bracey, constitutional of a Parte criminal defendant S.E. 593, (1918); sрeedy 595 Chalfant, to a trial was not before Ex Parte 81 the Court. 93, 96, 1032, (1917);

W.Va. 93 S.E. 1033 important, Robinson, 243, Most all four 254, of the Denham v. 72 W.Va. majority 970, (1913); above cases cited the in Hol 77 Cooper S.E. 975 King, v. 876, fail (N.D.W.Va.1969), stein to mention the three-term rule F.Supp. 878 W.Va.Code, 62-3-21, Coiner, which Raleigh 1151, statute F.Supp. v. (N.D.W.Va.1969). existed at the time those cases were decid As each of the above W.Va.Code, 62-3-1, W.Va.Code, indicates, Code, ed. 62-3-21, cases W.Va. is this 62-3-21, provide requirements both as to State’s declaration of a criminal defen when the trial of a in right criminal defendant dant’s speedy constitutional to a trial. circuit Accordingly, court should occur. priоr At no time to Holstein has this Court statutory these W.Va.Code, 62-3-1, two sections should read held that defines the pari in right speedy materia.6 to trial.7 5. As Justice Miller wrote: cursory reading “It seems to me that even a of cursory compel the two reading It seems to me that statutes would the even a conclusion compel they of the two designed complement statutes would the conclu- were to each they designed complement 5, sion that were to supra. other.” Footnote W.Va.Code, respect each other. In this 62-3- legislative grant reflects the intent to Court, DeBerry, purpose 7.This in described the right good liberal for a W.Va.Code, 62-3-21: good and if such ed, cause cannot be demonstrat- Court, pointed pur- As often out during then the defendant must be tried pose pertinent of the statute is to assure a Counterbalancing the indictment term. speedy legislative defendant a W.Va.Code, 62-3-21, trial. It is the provision is which enu- what, adoption ordinarily, only grounds declaration of at merates certain for continuance least, and, speedy constitutes a will toll the three-term rule in trial within the absence, III, boundary meaning their the outer line is of Article Section 14 of the State Constitution, breached and the defendant is forever dis- and of the Sixth Amendment to charged prosecution. Constitution, and, course, the Federal 164 W.Va. at S.E.2d at purpose liberally intended should be con- (Citations omitted.) strued. 6. As Justice Miller states in his dissent in Hol- 120 S.E.2d at 506. stein : The determination of is criminal defendant. the indictment The term at which cause, pursuant to good under Va. what is W.Va. not to be counted W returned is 62-3-21, discharge Code, 62-3-1, trial of the for a continuance of a favor Whytsell rel. v. beyond ex the term of indictment is a defendant. State Boles, court, and, 141 S.E.2d 149 W.Va. sound discretion of the trial (1965); Syl. pt. determined, ex rel. Smith good a trial when cause is 534, 120 S.E.2d 504 DeBerry, Code, 62-3-1, may, pursuant court to W Va. (1961), pt. Syl. Sands Common grant beyond of a trial continuance (1871). wealth, As those 20 Gratt. 800. request term of at the of either indictment indicate, least three full terms of cases defense, prosecutor indictment must beyond the term of court court’s motion. own before, under pass Specifically, this Court holds that right speedy the constitutional trial may, circuit judge multi-judge trial in a Accordingly, importance denied. cause, upon his own motion and for term of indictment is lessened under W.Va. beyond order a continuance of a trial Code, 62-3-21, speedy in terms of trial. judge’s term of indictment because of the Therefore, justifiable it would not be docket, congested judge and suсh need associate the one-term rule under W.Va. judge not whether other ascertain right with a constitutional the term try the ‍‌​​​​​‌​‌‌​‌‌​​‌‌‌​​​‌​‌‌‌‌​‌‌‌​​​​‌​​​‌​​‌​‌‌‌‌‍circuit can the case within particularly an instance W.Va.Code, of indictment. 62-3-1. are near the where indictments returned regard, judges in mul In this end of a term. the same con ti-judge circuits should have reasoning, With like a criminal judges as trial trol over their dockets is continued ease single-judge Except circuits. for the bene 62-3-1, from the term of cir geographic proximity fit of some term, indictment to the next cuits, judges in multi problems of trial term the defendant is not tried that latter conges docket judge circuits relation to State, because of a continuance single-judge to those in tion are similar nothing provisions in the circuits. 62-3-1, dis would entitled the defendant to state as a mat This Court cannot Rather, charge prosecution. the out Judge Hey abused his dis ter of law that case, in boundary er such a finding good cause for a cretion in his in terms of is established in of the relators’ cases and continuance W.Va.Code, 62-3-21. continuing upon these cases his own mo of the This Court is A examination of the record tion. careful record, upon the a for cause shown Judge Hey’s trial docket was reveals pursuant trial court to W.Va. substantiаlly congested, particularly from may, upon upon motion its own motion the date of the relators’ a criminal parties, of one or more continue term, May 1980 hearing to the end of the Pur beyond trial the term of indictment.8 Hey Judge time had scheduled other which section, in the absence of a suant to this event, justifiable activities. In for, request court’s own motion or the trial Judge Hey’s docket was con assertion that for, in a in the term gested, present the relators no evidence to is re which the indictment is returned contrary. quired. trial court to con Failure practical problems There are a number duct such а trial in the term of indictment attempting try a itself, facing trial court in in in a does not for reasons set forth his indictment. defendant in the term of opinion, prosecution of a bar further Authority trial court was correct in not forc- stated: "The exists for the continuance of a crim- upon ing ordering inal trial a court’s own motion. In State a continuance of the trial 179, Rogers Casey, ex rel. v. 166 W.Va. 273 166 W.Va. at court’s own motion.” case on the (1980), involving S.E.2d 356 an action the three- 184, at 359. 273 S.E.2d W.Va.Code,62-3-21, term rule this Court 256 indictments, example, may discovery type and motions for elude motions

Numerous term, prosecution. mak- in arrest In a case involv- in thе middle of a returned confession, ing sup- in a indictments that term whether motion ing upon such addition, not, difficult, press it be filed or the trial court must impossible.9 if not initial vol- circuit court terms hear evidence and determine the noted that should be length, thereby pro- of the vary in untariness of the confession out Virginia days, presence jury. Syl. pt., more v. trial courts State viding some 800, days, Staley, courts less to effectuate 162 W.Va. 253 S.E.2d 66 other trial 663, (1979); Smith, 158 W.Va. rule.10 State v. the one-term 759, (1975), 1, Syl. pt. S.E.2d State Moreover, case, in a criminal Fortner, 571, 150 W.Va. 148 S.E.2d 669 and the nature and evi pre-trial procedures others, (1966). factors, These often relating to the offensе to be tried dence trying times contribute to the difficulties difficulty trying may contribute to indictment. criminal cases the term of defendant the term of his indictment. It noted that there are held, must further be example, This has that a matters, cases, than criminal which other criminal defendant’s state and federal con priority upon have a the trial court docket. rights are violated if his counsel stitutional cases, Extraordinary remedy under W.Va. adequately pre is denied sufficient time to 53, prohibition injunc- ch. such as pare Rogers for trial. State ex rel. proceedings, priori- often necessitate a tion Casey, 166 W.Va. S.E.2d 356 thus, docket, ty upon adding the trial court (1980). addition, where individuals are indicted, difficulty may to the a trial court faces effec- jointly such individuals elect Moreover, tuating separately. Syl. pt. the one-term rule. stat- to be tried State ex subsequent 120 utes have enacted Muntzing, rel. Zirk v. 146 W.Va. been (1961); Syl. pt. v. Rob enactment of S.E.2d erts, (1901). further limit the trial court’s time to effec- S.E. Often, the court must consider and rule tuate the one-term rule. These statutes pre-trial involuntary hospitalization proceed- various motions filed de include pre-trial ings,11juvenile proceedings,12 motions in- and child ne- fense counsel. Such time, during grand jury county 9. The a term of hold court in the sаme or in different specified by must be convened is not the statu- counties within the circuit at the same time or Va.Code, tory seq. law of State. W. et 52-2-1 at different times. may grand are, A circuit court a term order a The terms of the circuit courts jury provision, to be drawn "... whenever it shall be to the above constitutional estab- W.Va.Code, proper per- to do so.” seq. 52-2-1. et lished 51-2-1 grand jury duty appear (McDowell sons drawn for shall Eighth In the Judicial Circuit day required.” circuit, court "... on the County), example, multi-judge days Va.Code, 52-2-3. The of service for which the per year. there are four terms W. 51- grand jury may compensated vary members bе days Consequently, 2-lh. there are fewer avail- State, and, among the counties of this in Kana- try able to a defendant in the term of his indict- County, grand jury wha members "... shall not multi-judge ment in this circuit than in a circuit paid sixty days’ be than for more services for per year with three terms such as in the Seventh W.Va.Code, any one court." term of 52-2-13. W.Va.Code, (Logan County). Judicial Circuit 51-2-lg. insuring difficulty 10. One trial in the term of Code, 27-5-2, provides 11. W.Va. that where an indictment on a state-wide basis is that initially thirty-one judicial individual detained and taken into terms of court in the circuits Va.Const., VIII, custody involuntary hospitalization pro- vary length. in an in As W. § art. court, ceeding provides, probаble part: to be held in circuit a in hearing post- shall be held forthwith or every county in In the State the circuit poned forty-eight not to exceed hours. county court for such shall sit at least three year. supreme times in each The court of W.Va.Code, 49-5-8, provides designate that with re- appeals shall the times at which sit, spect hearing juvenile to a detention in a delin- each circuit court shall but until this ac- court, proceeding quency be in by supreme appeals, to held circuit tion is taken court of initially custody, pre- where a child is taken into each circuit court shall sit at the times immediately by child must be taken before a scribed law. If there be two or more "... judge judges judges may of a circuit such referee or of the circuit court in no W.Va.Code, pro- prosecution from under 62-3- Such gleet proceedings.13 abuse or thereby periods provided. right time it could The ceedings involve strict have so respect with to restricting the trial court the defendant is limited under somewhat upon W.Va.Code, 62-3-1, the docket. compared other matters to W.Va. Code, 62-3-21, remedy and the likewise problems in effectu practical Such should be limited. in rule are no less valid ating the one-term in this State where multi-judge circuits noting practical prob equally serious as in congestion is docket attempting lems trial a court must face Under the Holstein single-judge circuits. try to a in the term of his indict defendant rule, docket interpretation of the one-term ment, Code, 62-3-1, pursuant to W.Va. among judges the trial a coordination Court must make clear that it does not major prob a multi-judge circuit would be inefficiency delay condone or undue lem, in view of numerous in particularly trials, proceedings, criminal other being returned the middle of a dictments the circuit courts of this State. For mean criminal and matters term where other civil Court, therefore, ingful by this review previously have been scheduled far ad judge affirmatively should state Accordingly, respect with to the vance. constituting good the record the elements Code, 62-3-1, rule under one-term W.Va. cause for a continuance under W.Va. by judge multi-judge in a continuance Further, 62-3-1. where the defendant circuit should be reviewed this Court objects to a continuance W.Va. applica the same standards of Code, 62-3-1, objection should be made reviewing judge ble a continuance grounds upon the record and the for such single-judge in a circuit. objection particularity. with stated hold, therefore, defendant, that a We Moreover, where the trial court Code, 62-3-1, pursuant to has a stat- W.Va. is of the that the State has deliber utory right trial in the term of his indict- sought delay a trial ately oppressively ment, possible subject to a continuance for and such beyond the term of indictment Further, defendant, pursu- cause. prejudice delay has resulted substantial Code, 62-3-21, ant to has a constitu- W Va. accused, may, pursu the trial court right three terms from tional within W.Va.Code, 62-3-1, finding that no ant to indictment, subject the term of his to cer- good cause was shown to continue the exceptions. enumerated Where these tain prejudice. dismiss the indictment with violated, only it is twо statutes are W.Va. doing the trial court should exercise so specifically provides an in extreme caution and should dismiss discharged the defendant shall be W.Va.Code, 62-3-1, dictment Legislature prosecution. from did not prompt adminis only in furtherance of the remedy provide in justice. a dismissal would tration of Such discharge that it ex- brought about a violation provided in 62-3-21. pressly statutory right discharge defendant’s under W.Va. Legislature If the had intended regular succeeding court.” delay than the next term of said event shall a exceed the next custody judicial day.” a child remains in 49-5-9. Where subsequent hearing, the circuit to a detention 49-5-9, referee, a circuit pursuant 13. Pursuant or court shall, case, court, may, neglect or abuse good in a child unless a continuance be for shown, pre- Va. schedule a preliminary hearing to W. conduct a concern- which, liminary hearing ing at in a case of immi- days the child within seven of the time the child, may danger remove to the the court custody, nent child is taken into otherwise the child exceeding thirty days period a not upon recognizance. the child for shall be released If the result, having custody. As a the custody subsequent prelimi- from those child is in to the 49-6-1, Code, court, pursuant must nary hearing, to W.Va. the detention shall not continue hearing upon case the merits of the longer thirty days have a than without commencement thirty days, unless a continuance for adjudicatory hearing good within "... of an unless "... certain, granted time is to a date by a reasonable cause for a continuance be shown either or, demanded, longer cause shown.” party jury for if a trial be no (1979Re- (Cum.Supp.1981)and 62-3-21 62-3-1, term of ‍‌​​​​​‌​‌‌​‌‌​​‌‌‌​​​‌​‌‌‌‌​‌‌‌​​​​‌​​​‌​​‌​‌‌‌‌‍his 3-1 to a trial in the Vol.). indictment, of a violation The former statute sim- placement not because speedy a right to constitutional provides “[wjhen an ply plainly defendant’s and any county, against trial.14 indictment is found misdemeanor, person felony for a the a above, pts. 1 and in Syl. all of the Upon accused, custody, appears if in or if he Casey, 164 W.Va. rel. Holstein ex State discharge recognizance, or of his voluntar- (1980) hereby are over- 460, 265 S.E.2d shall, for a ily, unless cause be shown are conflict extent the same ruled rules issued the same term opinion, and the be tried this with _” directing against respondent the Casey, this Court State ex rel. Holstein v. prohibition why writs of (1980), to show him we 265 S.E.2d against him are not awarded should the language and determined that read denied. discharged and writs Legislature mandated enactment of had statute, be tried “that a defendant denied. Writs term his indictmеnt unless the same as Justice, NEELY, concurring: is for a continuance good cause shown ” 465, 265 S.E.2d at 533. 164 W.Va. at .... holding heartily today’s but I concur with require I go further in that would I would provides: 62-3-21 W.Va.Code § defendant affirmative motion for an person by presentment Every charged any rights one term as a trial within before felony or indictment with a or misde- opin- syl. pt. majority forth set meanor, and to a court of com- remanded operation. always I come into would ion trial, petent jurisdiction for shall be for- record. good cause a silent infer from discharged prosecution from ever for represented by Defendants are now all offense, regular be three terms there a defendant want counsel. Seldom does presentment of such after trial, speedy Requiring otherwise. him, against indictment is found without continuing record a case an order of try failure to him unless the [was up to succeeding first or terms the result of certain enumerated causes]. merely three creates constitutional terms language read this Holstein we trap inexperienced young more one “provides specifically determined that it it will no effect whatso- prosecutors; have discharge of a defendant jus- proper ever on administration try the state has failed to within whom and, tice; lawyer, judge, merely it will take following terms of three court term really time. a defendant and staff Where W.Va. at indictment.” 164 S.E.2d ask for one speedy he can wants at 533. even impose high- event I an would We further stated Holstein that these good cause than to- regarding er standard statutes, together, read formu two when opinion provides. Law day’s majority legislative late the determination of what approach. practical practical and that is the speedy trial within the mean constitutes who give people should want We trials ing article 14 of the much section state worry overly аnd not about them constitution, people do not them. and held that failure of the who want prosecu to abide the statutes bars State McGRAW, Justice, dissenting: Syllabus of a criminal defendant. tion Casey, Point ex rel. Holstein question proceeding in this before us language supra* 62- involves the of W.Va.Code §§ 62-3-21, 1, W.Va.Code, 62-3-21, concerning when a a defendant's defines Virginia right trial is to occur makes West constitutional trial in West criminal unique. Virginia, and there somewhat are numerous case decisions concerning right jurisdictions. in other * However, provides juris- Although few cases W.Va.Code 62-3-1 no stat- § can be found in other comply penalty for the failure to with its dictions in the area of the law with which the ed terms, rule, Va.Code,62-3-1, necessary impose to we found it one-term W. is concerned. statutes, Va.Code, remedy discharge of because The existence of two W. 62-3-

259 majority, acquiescence The in tacit indictment is a speedy denial of the trial right-” disfavor accorded the statute and our hold- State ex rel. Holstein v. Ca- sey, supra, 467, ing by prosecutors, in Holstein circuit 164 atW.Va. 265 S.E.2d at 534. A commentators, congested judges docket “good and media now reads is not cause” for beyond continuance says W.Va.Code 62-3-1 and the lan- the one- § rule, term Mack, sеe State v. 89 guage of Wash.2d the statute does not mean what it 788, (1978); P.2d effect, American Bar clearly As- says, permits and in sociation, Standards Relating to Speedy disregard courts to the law enacted Trial 27-28 (Approved 1968), Draft Legislature. majority The rule removes much less the judge desire of the trial “to any incentive for trial courts to see that attend a seminar and then take a vacation.” criminal are defendants tried within one Majority opinion, supra, at 54. term Apparently of their indictment. mandatory language of W.Va.Code majority opinion The proves that the rule mandatory, 62-3-1 is not merely but di- § of law and not of mеn is proposi- a difficult rective. tion for lawyers judges obey, espe- and to cially in “hard” public opinion cases where said, We often hear it I every bet panting. speak Those who of swift and repeated member of this has justice sure speedy political trials in campaign, exhortation his election rhetoric, who, hand, but on the other when justice However, should be swift and sure. public faced with pressure, decline to ad- When the time apply concept comes to this here to philosophy of Rule of Law ain factual context that interferes with philosophy deference to a judi- оf unbridled judicial pleasures, vacations and other discretion, cial sactioning are unlawful say Court is inclined justice to should loopholes. I grant would prohi- the writ of quite not be that swift and sure. bition. purpose The of the rule enunciated this Court in require pros- Holstein was to I am authorized to state that Justice judges ecutors and perform their duties joins HARSHBARGER inme expeditiously a manner consistent with dissenting opinion, says further: the state constitution and the statutory law “Perhaps be, that tenet should we are a jurisdiction. of this I venture say that if nation that adheres to the rule of law and prosecutor enough has evidence to сon- except not of when the men become men— grand indict, vince a jury ought he press a mob led prosecutors.” have sufficient go evidence to to trial. Of course, good is shown the de-

fendant or the State for a granted.

motion therefor should be But judges permitted, should not be 294 S.E.2d 62 guise “judicial discretion” or the Virginia STATE West courts,” power ‍‌​​​​​‌​‌‌​‌‌​​‌‌‌​​​‌​‌‌‌‌​‌‌‌​​​​‌​​​‌​​‌​‌‌‌‌‍“inherent to obstruct rendering justice swift for reasons Eugene

that do not constitute LESS. cause. No. 14956. public The is entitled to the benefits of provisions constitutional guaran- Supreme Appeals Court of VI; tee trials. U.S.Const. amend. Virginia. 3, 13; W.Va.Const. art. see State ex rel. § 1981. Dostert, Skinner v. Concurring Opinion June (1981); Santee, S.E.2d 624 parte Ex Va. (Va.Gen.Ct.1823). Cas. 4 Va. 271

Legislature has delay determined “that a

without beyond the term of an give no lesser relief exists "that would effect to W.Va. at S.E.2d at 533. respect and maintain for the statute.”

Case Details

Case Name: State Ex Rel. Shorter v. Hey

Court Name: West Virginia Supreme Court

Date Published: Jul 2, 1982

Citation: 294 S.E.2d 51

Docket Number: 15068, 15079 and 15085

Court Abbreviation: W. Va.