double jeopardy clause in West Virginia

2020Moreover, to the extent that petitioner implies a double jeopardy violation by arguing that West Virginia Code § 61-8D-5(a) incorporates sex crimes criminalized in other statutes but omits the element of lack of consent, we held, in part, in syllabus point 9 of State v. Gill, 187 W.

2017The circuit court found as follows: (1) the circuit court had jurisdiction and petitioner’s guilty pleas were valid because petitioner’s claim of incompetency at the time of the plea hearing lacked evidentiary support; (2) petitioner entered his guilty pleas voluntarily because petitioner “communicated well” with the circuit court and “told [the court] that he was voluntarily pleading guilty to counts one and three”; (3) petitioner was not incompetent at the time of the offenses because “there is no evidence that the petitioner did not know right from wrong or appreciate the wrongfulness of hi

2022In this regard, the State argues that “because the legislative intent to punish drug-related conduct under multiple statutes is abundantly clear from the face of the statute, West Virginia Code § 60A-4-416, punishing Petitioner for violating West Virginia Code § 60A-4-401, as well as causing death while violating that provision, does not violate Double Jeopardy.” We disagree. 16 See Garrett v. United States, 471 U.S. 773, 778 (1985) (“Where the same conduct violates two statutory provisions, the first step in the double jeopardy analysis is to determine whether the Legislature – in this case C

2021However, “[w]here the same conduct violates two statutory provisions, the first step in the double jeopardy analysis is to determine whether the legislature . . . intended that each violation be a separate offense.” Garrett v. United States, 471 U.S. 773, 778 (1985).

2025If proof of the greater offense includes all of the elements of the lesser offense, a conviction for one bars a conviction for the other.”19 Anthony M. contends that in State v. Wright,20 this Court applied the analysis from Gill to the wanton endangerment and malicious assault statutes after Mr. Wright was charged with both offenses for shooting and wounding an acquaintance.21 We observed there that convictions for wanton endangerment and malicious assault do not always constitute a double jeopardy violation since wanton endangerment with a firearm under West Virginia Code § 61-7-12 requires

2025If proof of the greater offense includes all of the elements of the lesser offense, a conviction for one bars a conviction for the other.”19 Anthony M. contends that in State v. Wright,20 this Court applied the analysis from Gill to the wanton endangerment and malicious assault statutes after Mr. Wright was charged with both offenses for shooting and wounding an acquaintance.21 We observed there that convictions for wanton endangerment and malicious assault do not always constitute a double jeopardy violation since wanton endangerment with a firearm under West Virginia Code § 61-7-12 requires

2000See also State v. Myers, 171 W.Va. 277, 280 , 298 S.E.2d 813, 816 (1982) (“The double jeopardy bar against multiple punishments is to prohibit judges from imposing more penalty than the legislature has sanctioned.”) (citation omitted); State v. Gill, 187 W.Va. at 141 , 416 S.E.2d at 258 (“ With respect to cumulative sentences imposed in a single trial, the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended.’ ”) (quoting Missouri v. Hunter, 459 U.S. 359, 366 , 103 S.Ct. 673, 678 , 74 L.Ed.2d 535, 542 (1983)).

2000See also State v. Myers, 171 W.Va. 277, 280 , 298 S.E.2d 813, 816 (1982) (“The double jeopardy bar against multiple punishments is to prohibit judges from imposing more penalty than the legislature has sanctioned.”) (citation omitted); State v. Gill, 187 W.Va. at 141 , 416 S.E.2d at 258 (“ With respect to cumulative sentences imposed in a single trial, the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended.’ ”) (quoting Missouri v. Hunter, 459 U.S. 359, 366 , 103 S.Ct. 673, 678 , 74 L.Ed.2d 535, 542 (1983)).

2022In this regard, the State argues that “because the legislative intent to punish drug-related conduct under multiple statutes is abundantly clear from the face of the statute, West Virginia Code § 60A-4-416, punishing Petitioner for violating West Virginia Code § 60A-4-401, as well as causing death while violating that provision, does not violate Double Jeopardy.” We disagree. 16 See Garrett v. United States, 471 U.S. 773, 778 (1985) (“Where the same conduct violates two statutory provisions, the first step in the double jeopardy analysis is to determine whether the Legislature – in this case C

2000See also State v. Myers, 171 W.Va. 277, 280 , 298 S.E.2d 813, 816 (1982) (“The double jeopardy bar against multiple punishments is to prohibit judges from imposing more penalty than the legislature has sanctioned.”) (citation omitted); State v. Gill, 187 W.Va. at 141 , 416 S.E.2d at 258 (“ With respect to cumulative sentences imposed in a single trial, the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended.’ ”) (quoting Missouri v. Hunter, 459 U.S. 359, 366 , 103 S.Ct. 673, 678 , 74 L.Ed.2d 535, 542 (1983)).

2014State v. Frazier, 162 W.Va. 602 , 625 n.16, 252 S.E.2d 39 , 52 n.16 (1979). 3 held that the double jeopardy “prohibition is not against being twice punished, but against being twice put in jeopardy.” United States v. Ball, 163 U.S. 662, 669 (1896).6 In Green v. United States, 355 U.S. 184 (1957), the Supreme Court stated “the constitutional prohibition against ‘double jeopardy’ was designed to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense.” Id. at 186 (emphasis added).

2014State v. Frazier, 162 W.Va. 602 , 625 n.16, 252 S.E.2d 39 , 52 n.16 (1979). 3 held that the double jeopardy “prohibition is not against being twice punished, but against being twice put in jeopardy.” United States v. Ball, 163 U.S. 662, 669 (1896).6 In Green v. United States, 355 U.S. 184 (1957), the Supreme Court stated “the constitutional prohibition against ‘double jeopardy’ was designed to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense.” Id. at 186 (emphasis added).

2014State v. Frazier, 162 W.Va. 602 , 625 n.16, 252 S.E.2d 39 , 52 n.16 (1979). 3 held that the double jeopardy “prohibition is not against being twice punished, but against being twice put in jeopardy.” United States v. Ball, 163 U.S. 662, 669 (1896).6 In Green v. United States, 355 U.S. 184 (1957), the Supreme Court stated “the constitutional prohibition against ‘double jeopardy’ was designed to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense.” Id. at 186 (emphasis added).

2014State v. Frazier, 162 W.Va. 602 , 625 n.16, 252 S.E.2d 39 , 52 n.16 (1979). 3 held that the double jeopardy “prohibition is not against being twice punished, but against being twice put in jeopardy.” United States v. Ball, 163 U.S. 662, 669 (1896).6 In Green v. United States, 355 U.S. 184 (1957), the Supreme Court stated “the constitutional prohibition against ‘double jeopardy’ was designed to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense.” Id. at 186 (emphasis added).

2012See also State v. Adel, 136 Wash.2d 629, 634 , 965 P.2d 1072, 1074 (1998) (proper inquiry in a single-statute ease is “what ‘unit of prosecution’ has the Legislature intended as the punishable act under the specific criminal statute”) (citation omitted); Rashad v. Burt, 108 F.3d 677, 679-80 (6th Cir.1997) (“The Blockburger test is insufficient where ... the concern is not multiple charges under separate statutes____”), cert. denied, 522 U.S. 1075 , 118 S.Ct. 850 , 139 L.Ed.2d 751 (1998); United States v. Keen, 104 F.3d 1111 , 1118 n. 12 (9th Cir.1996) (refusing to apply Blockburger test where

2000See also State v. Adel 136 Wash.2d 629, 634 , 965 P.2d 1072, 1074 (1998) (proper inquiry in a single-statute case is “what ‘unit of prosecution’ has the Legislature intended as the punishable act under the specific criminal statute”) (citation omitted); Rashad v. Burt, 108 F.3d 677, 679-80 (6th Cir.1997) (“The Bloclcburger test is insufficient where ... the concern is not multiple charges under separate statutes .... ”), cert. denied, 522 U.S. 1075 , 118 S.Ct. 850 , 139 L.Ed.2d 751 (1998); United States v. Keen, 104 F.3d 1111 , 1118 n. 12 (9th Cir.1996) (refusing to apply Blockburger test wher

2012See also State v. Adel, 136 Wash.2d 629, 634 , 965 P.2d 1072, 1074 (1998) (proper inquiry in a single-statute ease is “what ‘unit of prosecution’ has the Legislature intended as the punishable act under the specific criminal statute”) (citation omitted); Rashad v. Burt, 108 F.3d 677, 679-80 (6th Cir.1997) (“The Blockburger test is insufficient where ... the concern is not multiple charges under separate statutes____”), cert. denied, 522 U.S. 1075 , 118 S.Ct. 850 , 139 L.Ed.2d 751 (1998); United States v. Keen, 104 F.3d 1111 , 1118 n. 12 (9th Cir.1996) (refusing to apply Blockburger test where

2000See also State v. Adel 136 Wash.2d 629, 634 , 965 P.2d 1072, 1074 (1998) (proper inquiry in a single-statute case is “what ‘unit of prosecution’ has the Legislature intended as the punishable act under the specific criminal statute”) (citation omitted); Rashad v. Burt, 108 F.3d 677, 679-80 (6th Cir.1997) (“The Bloclcburger test is insufficient where ... the concern is not multiple charges under separate statutes .... ”), cert. denied, 522 U.S. 1075 , 118 S.Ct. 850 , 139 L.Ed.2d 751 (1998); United States v. Keen, 104 F.3d 1111 , 1118 n. 12 (9th Cir.1996) (refusing to apply Blockburger test wher

2012See also State v. Adel, 136 Wash.2d 629, 634 , 965 P.2d 1072, 1074 (1998) (proper inquiry in a single-statute ease is “what ‘unit of prosecution’ has the Legislature intended as the punishable act under the specific criminal statute”) (citation omitted); Rashad v. Burt, 108 F.3d 677, 679-80 (6th Cir.1997) (“The Blockburger test is insufficient where ... the concern is not multiple charges under separate statutes____”), cert. denied, 522 U.S. 1075 , 118 S.Ct. 850 , 139 L.Ed.2d 751 (1998); United States v. Keen, 104 F.3d 1111 , 1118 n. 12 (9th Cir.1996) (refusing to apply Blockburger test where

2000See also State v. Adel 136 Wash.2d 629, 634 , 965 P.2d 1072, 1074 (1998) (proper inquiry in a single-statute case is “what ‘unit of prosecution’ has the Legislature intended as the punishable act under the specific criminal statute”) (citation omitted); Rashad v. Burt, 108 F.3d 677, 679-80 (6th Cir.1997) (“The Bloclcburger test is insufficient where ... the concern is not multiple charges under separate statutes .... ”), cert. denied, 522 U.S. 1075 , 118 S.Ct. 850 , 139 L.Ed.2d 751 (1998); United States v. Keen, 104 F.3d 1111 , 1118 n. 12 (9th Cir.1996) (refusing to apply Blockburger test wher

2012See also State v. Adel, 136 Wash.2d 629, 634 , 965 P.2d 1072, 1074 (1998) (proper inquiry in a single-statute ease is “what ‘unit of prosecution’ has the Legislature intended as the punishable act under the specific criminal statute”) (citation omitted); Rashad v. Burt, 108 F.3d 677, 679-80 (6th Cir.1997) (“The Blockburger test is insufficient where ... the concern is not multiple charges under separate statutes____”), cert. denied, 522 U.S. 1075 , 118 S.Ct. 850 , 139 L.Ed.2d 751 (1998); United States v. Keen, 104 F.3d 1111 , 1118 n. 12 (9th Cir.1996) (refusing to apply Blockburger test where

2000See also State v. Adel 136 Wash.2d 629, 634 , 965 P.2d 1072, 1074 (1998) (proper inquiry in a single-statute case is “what ‘unit of prosecution’ has the Legislature intended as the punishable act under the specific criminal statute”) (citation omitted); Rashad v. Burt, 108 F.3d 677, 679-80 (6th Cir.1997) (“The Bloclcburger test is insufficient where ... the concern is not multiple charges under separate statutes .... ”), cert. denied, 522 U.S. 1075 , 118 S.Ct. 850 , 139 L.Ed.2d 751 (1998); United States v. Keen, 104 F.3d 1111 , 1118 n. 12 (9th Cir.1996) (refusing to apply Blockburger test wher

2010See Syllabus Point 1, State v. Sears, 196 W.Va. 71 , 468 S.E.2d 324 (1996), where we held that “[b]oth the construction and scope of W.Va.Code, 62-12-13(a)(l)(A) (1988), the parole statute, and a double jeopardy claim are reviewed de novo.” See also, State v. Wright, 200 W.Va. 549, 552 , 490 S.E.2d 636, 639 (1997); State v. Williams, 215 W.Va. 201, 204 , 599 S.E.2d 624, 627 (2004).

2010See Syllabus Point 1, State v. Sears, 196 W.Va. 71 , 468 S.E.2d 324 (1996), where we held that “[b]oth the construction and scope of W.Va.Code, 62-12-13(a)(l)(A) (1988), the parole statute, and a double jeopardy claim are reviewed de novo.” See also, State v. Wright, 200 W.Va. 549, 552 , 490 S.E.2d 636, 639 (1997); State v. Williams, 215 W.Va. 201, 204 , 599 S.E.2d 624, 627 (2004).

2022In this regard, the State argues that “because the legislative intent to punish drug-related conduct under multiple statutes is abundantly clear from the face of the statute, West Virginia Code § 60A-4-416, punishing Petitioner for violating West Virginia Code § 60A-4-401, as well as causing death while violating that provision, does not violate Double Jeopardy.” We disagree. 16 See Garrett v. United States, 471 U.S. 773, 778 (1985) (“Where the same conduct violates two statutory provisions, the first step in the double jeopardy analysis is to determine whether the Legislature – in this case C

1996As we will explain below, the most accurate rule on the double jeopardy principle for multiple prosecutions in West Virginia is set forth in syllabus point 8 of State v. Zaccagnini, 172 W.Va. 491 , 308 S.E.2d 131 (1983).

2015The double jeopardy clause of the West Virginia constitution “provides immunity from further prosecution where a court having jurisdiction has acquitted the accused.” Syl. pt. 1, in part, Conner v. Griffith, 160 W.Va. 680 , 238 S.E.2d 529 (1977); see also W.

1980We wrote about a similar double jeopardy claim in Conner v. Griffith, _ W.Va. _, 238 S.E.2d 529 (1977), involving multiple punishments.

1996“What we have described is essentially the ‘same evidence’ test, see Brown v. Ohio, 432 U.S. 161 , 97 S.Ct. 2221 , 53 L.Ed.2d 187 (1977), applied to the double jeopardy bar against multiple punishments for the same offense.” 171 W.Va. at 280-81, 298 S.E.2d at 817 .

1996“What we have described is essentially the ‘same evidence’ test, see Brown v. Ohio, 432 U.S. 161 , 97 S.Ct. 2221 , 53 L.Ed.2d 187 (1977), applied to the double jeopardy bar against multiple punishments for the same offense.” 171 W.Va. at 280-81, 298 S.E.2d at 817 .

2016The Watson Court concluded that the four charges for first degree murder did not violate double jeopardy principles, holding that “where multiple homicides occur even though they are in dose proximity in time, if they are not the result of a single volitive act of the defendant, they may be tried and punished separately under the double jeopardy clause of Article III, Section 5 of the West Virginia Constitution.” Id. at 352-53, 274 S.E.2d at 448 (emphasis added).

2002This Court denied that relief in prohibition and explained that “where multiple homicides occur even though they are in close proximity in time, if they are not the result of a single volitive act of the defendant, they may be tried and punished separately under the double jeopardy clause of Article III, Section 5 of the West Virginia Constitution.” Id. at 352-53 , 274 5.E.2d at 448.

2016See United States v. Scott, 437 U.S. 82, 99 , 98 S.Ct. 2187 , 57 L.Ed.2d 65 (1978) (“the Double Jeopardy Clause, which guards against Government oppression, does not relieve a defendant from the consequences of his voluntary choice.”). 48 Indeed, we are unpersuaded that the double jeopardy clause is violated when a court restructures the lawful portions of a defendant’s sentence when correcting the unlawful portions pursuant to a Rule 35(a) motion where, as here, the sentence is within statutory limits and the aggregate sentence has not increased.

2016See United States v. Scott, 437 U.S. 82, 99 , 98 S.Ct. 2187 , 57 L.Ed.2d 65 (1978) (“the Double Jeopardy Clause, which guards against Government oppression, does not relieve a defendant from the consequences of his voluntary choice.”). 48 Indeed, we are unpersuaded that the double jeopardy clause is violated when a court restructures the lawful portions of a defendant’s sentence when correcting the unlawful portions pursuant to a Rule 35(a) motion where, as here, the sentence is within statutory limits and the aggregate sentence has not increased.

1994This double jeopardy bar was announced in Burks v. United States, 437 U.S. 1 , 98 S.Ct. 2141 , 57 L.Ed.2d 1 (1978), and we adopted it in Syllabus Point 4 of State v. Frazier, 162 W.Va. 602 , 252 S.E.2d 39 (1979): “The Double Jeopardy Clause of the Federal and this State’s Constitutions forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding.” See also State v. Tanner, 181 W.Va. 210 , 382 S.E.2d 47 (1989); State v. Breeden, 174 W.Va. 705 , 329 S.E.2d 71 (1985); Syllabus Point 3, State v. Milam,,

1994This double jeopardy bar was announced in Burks v. United States, 437 U.S. 1 , 98 S.Ct. 2141 , 57 L.Ed.2d 1 (1978), and we adopted it in Syllabus Point 4 of State v. Frazier, 162 W.Va. 602 , 252 S.E.2d 39 (1979): “The Double Jeopardy Clause of the Federal and this State’s Constitutions forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding.” See also State v. Tanner, 181 W.Va. 210 , 382 S.E.2d 47 (1989); State v. Breeden, 174 W.Va. 705 , 329 S.E.2d 71 (1985); Syllabus Point 3, State v. Milam,,

2012It recognized two exceptions to the general rule that a guilty plea results in waiver of a double jeopardy claim: (1) if there exists a realistic likelihood of prosecutorial vindictiveness in contravention of defendant’s right to due process of law (citing Blackledge v. Perry, 417 U.S. 21 , 94 S.Ct. 2098 , 40 L.Ed.2d 628 (1974)); or (2) if the charge, when judged on its face, is one which the State may not constitutionally prosecute (citing Menna v. New York, 423 U.S. 61 , 96 S.Ct. 241 , 46 L.Ed.2d 195 (1975)).

2012It recognized two exceptions to the general rule that a guilty plea results in waiver of a double jeopardy claim: (1) if there exists a realistic likelihood of prosecutorial vindictiveness in contravention of defendant’s right to due process of law (citing Blackledge v. Perry, 417 U.S. 21 , 94 S.Ct. 2098 , 40 L.Ed.2d 628 (1974)); or (2) if the charge, when judged on its face, is one which the State may not constitutionally prosecute (citing Menna v. New York, 423 U.S. 61 , 96 S.Ct. 241 , 46 L.Ed.2d 195 (1975)).

1989As we stated in State v. Reed, 166 W.Va. 558, 567 , 276 S.E.2d 313, 319-20 (1981): “Since many statutory crimes are dupli-cative, it is well established that separate statutory crimes may be the ‘same offense’ under the double jeopardy clause, even though they are not identical in either constituent elements or actual proof.

1989As we stated in State v. Reed, 166 W.Va. 558, 567 , 276 S.E.2d 313, 319-20 (1981): “Since many statutory crimes are dupli-cative, it is well established that separate statutory crimes may be the ‘same offense’ under the double jeopardy clause, even though they are not identical in either constituent elements or actual proof.

2021We agree with the State. 4 The imposition of an additional term of supervised release following petitioner’s incarceration for the full forty-year term of his supervised release is authorized by West Virginia Code § 62-12-26(j). 5 The Sixth Amendment to the United States Constitution provides, in pertinent part, that “[t]he accused shall enjoy the right to a . . . public trial, by an impartial jury[.]” Article III, Section 14 of the West Virginia Constitution provides, in pertinent part, that “[t]rials of crimes, and of misdemeanors, unless herein otherwise provided, shall be by a jury[.]” The

2021We agree with the State. 4 The imposition of an additional term of supervised release following petitioner’s incarceration for the full forty-year term of his supervised release is authorized by West Virginia Code § 62-12-26(j). 5 The Sixth Amendment to the United States Constitution provides, in pertinent part, that “[t]he accused shall enjoy the right to a . . . public trial, by an impartial jury[.]” Article III, Section 14 of the West Virginia Constitution provides, in pertinent part, that “[t]rials of crimes, and of misdemeanors, unless herein otherwise provided, shall be by a jury[.]” The