State v. Gaskins
State v. Gaskins
Opinion of the Court
This case is before the Court upon an appeal by Jeffrey Gaskins (hereinafter “Appellant”) from the September 28, 2000, sentencing order of the Han’ison County Circuit Court, wherein Appellant’s release on supervised probation was revoked and his conviction of possession of less than fifteen grams of marijuana was entered pursuant to the distinctive provisions of West Virginia Code § 60A-4-407 (1971) (Repl.Vol. 2000).
Because we find that the citation charging the offense was fatally flawed due to the omission of a time within which Appellant was to appear to answer to the charges, we need not reach the assigned errors to conclude that the conviction and sentence are null and void.
I. Factual and Procedural Background
The facts of this case are relatively sketchy. The record shows that a citation was issued to Appellant on January 15, 1998, at 11:20 p.m. by a deputy of the Harrison County Sheriffs Office, charging Appellant with possessing more than fifteen grams of marijuana in violation of West Virginia Code § 60A-4-401(c) (1983) (Repl.Vol. 2000). When Appellant did not contact the magistrate court, a Notice of Failure to Respond was issued by the Harrison County Magistrate Court Clerk’s Office and sent to the Division of Motor Vehicles (hereinafter “DMV”).
Three months later, the State petitioned the circuit court to revoke probation, alleging that a violation of a condition of probation had occurred. At this juncture, Appellant was appointed counsel who moved for dismissal of both the revocation petition and the underlying criminal charge on the ground that the State failed to initiate prosecution
II. Discussion
Our review of the record reveals that the dispositive issue presented in this ease is whether the magistrate had the power or authority to accept a plea to the offense charged by citation when the citation did not specify a time within which Appellant was required to appear in court. This issue is not raised by a formal assignment of error and is not discussed in the briefs; however, this Court has held that “[ljack of jurisdiction may be raised for the first time in this court, when it appears on the face of the bill and proceedings, and it may be taken notice of by this court on its own motion.” Syl. Pt. 3, Charleston Apartments Corp. v. Appalachian Elec. Power Co., 118 W.Va. 694, 192 S.E. 294 (1937); see also State v. McLane, 128 W.Va. 774, 38 S.E.2d 343 (1946) (addressing jurisdictional defects in criminal context).
The issue raised in the case before us is particularly significant because of the number of citations which magistrate courts process each year. The statewide statistical report of case information for calendar year 2000
As suggested above, a citation is an alternative method by which law enforcement officers may initiate prosecution of certain misdemeanor offenses in magistrate court. W.Va.Code § 50-4-2 (1997) (Repl.Vol. 2000). The authority to issue citations in lieu of arrest for the type of offense involved in the instant case originates in West Virginia Code § 62-l-5a (1982) (Repl.Vol. 2000), which provides in relevant part:
A law-enforcement officer may issue a citation instead of making an arrest for the following offenses, if there are reasonable grounds to believe that the person being cited will appear to answer the charge:
(1) Any misdemeanor, not involving injury to the person, committed in a law-enforcement officer’s presence: Provided, That the officer may arrest the person if he has reasonable grounds to believe that the person is likely to cause serious harm to himself or others;
The citation shall provide that the defendant shall appear within a designated time.
If the defendant fails to. appear in response to the citation or if there are reasonable grounds to believe that he will not appear, a complaint may be made and a warrant shall issue.
W.Va.Code § 62-l-5a, in part (emphasis added).
Other essential components of a citation are defined in Rule 7(a), Rules of Criminal Procedure for Magistrate Courts, which states, in part, “[t]he citation must state the offense charged and notify the defendant of the requirement to answer or appear in response to the charge, by a date
Based on the foregoing, we find that Appellant’s conviction and resulting sentence is void for lack of jurisdiction. Accordingly, we vacate the conviction and sentence and remand the case to the Circuit Court of Harrison County for entry of an order consistent with this opinion.
Vacated and remanded.
. According to the "conditional discharge" provisions of West Virginia Code § 60A-4-407, when a person pleads or is found guilty of a first offense violation of West Virginia Code § 60A-4-401(c) (1983) (Repl.Vol. 2000), the court does not enter a judgment of guilt before admitting a defendant to probation; adjudication of guilt is not recorded unless probation is revoked.
. Presumably the clerk issued the notice pursuant to the requirement of West Virginia Code § 50-3-2a (d)(1) (1997) (Repl.Vol. 2000), which provides in pertinent part:
If a person charged with any criminal violation of this code fails to appear or otherwise respond in court, the magistrate court shall notify the commissioner of the division of motor vehicles thereof in fifteen days of the scheduled date to appear, unless the person sooner appears or otherwise responds in court to the satisfaction of the magistrate.
See also MAG. CTS. R. CRIM. P.R. 5.3, 22(b)(2).
.It is not clear from the record how or why the plea to a lesser offense occurred since the prosecutor was not present when the plea was accepted.
. The Director of the Administrative Office of the West Virginia Supreme Court of Appeals is responsible for tabulating information regarding the filing and disposition of cases handled by the circuit and magistrate courts of the state. See W.Va.Code § 51-1-17 (1999) (Repl.Vol. 2000).
. Additional information also may be required under specific statutes governing citations for other offenses. See, e.g., W.Va.Code § 17C-19-4 (1951) (Repl.Vol. 2000).
. MAG. CTS. R. CRIM. P.R. 7(b), 8.
. Rule 8 of the Rules of Criminal Procedure for Magistrate Courts recognizes the dual function of citations by noting that a citation may issue in lieu of the procedures governing criminal complaints and issuance of a summons to appear (or arrest warrant) upon a complaint.
. Magistrate court clerks generally do not assign citations to specific magistrates until the person named on the citation contacts the court. However, when magistrate court clerks notice an omission on a citation, the better practice is to assign the citation to a magistrate at that point to facilitate timely review.
. The provisions of West Virginia Code § 50-4-12 are applicable in both civil and criminal cases. State ex rel. Forbes v. McGraw, 183 W.Va. 144, 147 n. 3, 394 S.E.2d 743, 746 n. 3 (1990).
. Such a prosecution is barred in the case sub judice by the one-year statute of limitations governing misdemeanors generally. W.Va.Code § 61-11-9 (1923) (Repl.Vol. 2000).
Reference
- Full Case Name
- STATE of West Virginia, Below v. Jeffrey GASKINS, Below
- Status
- Published