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State ex rel State v. Sims

Supreme Court of West Virginia

November 8, 2017

STATE OF WEST VIRGINIA ex rel. STATE OF WEST VIRGINIA, Petitioner
v.
HONORABLE DAVID J. SIMS, JUDGE OF THE CIRCUIT COURT OF OHIO COUNTY, WEST VIRGINIA; AND DEMETRIUS MOORE Respondents

          Submitted: September 12, 2017

         Petition for Writ of Prohibition WRIT GRANTED

          Scott R. Smith, Esq. Ohio County Prosecuting Attorney Michael J. Olejasz, Esq. Assistant Prosecuting Attorney Wheeling, West Virginia Counsel for Petitioner

          Mark D. Panepinto, Esq. Panepinto Law Offices Wheeling, West Virginia Counsel for Respondent

         SYLLABUS BY THE COURT

         1. "The 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');">188 W.Va. 85, 422 S.E.2d 807 (1992), superseded by statute on other grounds stated in State v. Butler, 239 W.Va. 168, n.27, 799 S.E.2d 718, 729 n.27 (2017).

         2. "In determining whether to entertain and issue the writ of prohibition for cases not involving an absence of jurisdiction but only where it is claimed that the lower tribunal exceeded its legitimate powers, this Court will examine five factors: (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." Syllabus Point 4, State ex rel. Hoover v. Berger, 199 W.Va. 12');">199 W.Va. 12, 483 S.E.2d 12 (1996).

         3. West Virginia Code § 61-11-24 (2014) allows for the granting of credit for time served only on a sentence imposed by the court for the term of confinement "awaiting such trial and conviction."

          WALKER, JUSTICE

         Demetrius Moore pled guilty to one count of delivery of a controlled substance and second offense felony recidivism and was sentenced to a term of imprisonment of two to fifteen years. Following sentencing, Mr. Moore filed a motion for reconsideration, seeking to have his sentence suspended. Eventually, the circuit court granted Mr. Moore's motion and applied credit for time served for a prior, unrelated domestic battery charge. The State seeks to prevent enforcement of the circuit court's order suspending Mr. Moore's sentence. The sole issue we consider is whether the circuit court properly applied sentencing credit for time served on a prior, unrelated charge. We hold that it did not and grant the State's petition for writ of prohibition.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         On September 14, 2015, Mr. Moore was indicted by an Ohio County Grand Jury and charged with two counts of delivery of a controlled substance within 1, 000 feet of a school and one count of conspiracy. Pursuant to a plea agreement dated November 6, 2015, Mr. Moore pled guilty to both one count of delivery of a controlled substance and second offense felony recidivism. After factoring in an enhancement for the recidivist charge, Mr. Moore was sentenced to a term of two to fifteen years of imprisonment, with credit for forty-nine days served.

          On February 3, 2016, Mr. Moore timely filed a motion requesting that his sentence be suspended and that he be released upon probation and/or alternative sentencing pursuant to Rule 35(b) of the West Virginia Rules of Criminal Procedure. The circuit court denied this motion.

         Subsequently, Mr. Moore moved for a reconsideration of the denial of the Rule 35(b) motion and, this time, the circuit court granted it. The circuit court based its decision upon time served by Mr. Moore while awaiting trial on a prior, unrelated charge of third offense domestic battery. In that case, Mr. Moore was ...


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