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State v. McCraine5/16/2003
Around 2:30 a.m. on June 26, 1998, Appellant was driving in the city of Martinsburg, West Virginia. Upon observing Appellant's car speeding in the city proper, an on-duty Martinsburg policeman, Officer John Sherman, stopped Appellant for speeding. At the time of the stop, which actually took place outside of the city limits, Officer Sherman discovered that Appellant exhibited signs of intoxication. According to the State, Appellant did not successfully complete several field sobriety tests due in part to his inability to comply with the officer's directions, and Appellant also refused to take a secondary breath test.
Based upon his observations, Officer Sherman arrested Appellant and took him to magistrate court, where the officer filed a criminal complaint alleging two charges: third offense DUI, a felony, and first offense driving revoked for DUI, a misdemeanor.
According to Appellant, at or before a preliminary hearing held on November 6, 1998, he invoked his statutory right to trial in magistrate court *fn1
of the misdemeanor charge by moving to sever the charges. The magistrate granted the motion. As related by Appellant, at a later hearing on the misdemeanor charge the State moved to dismiss the complaint, and the motion was granted by the magistrate without prejudice. *fn2
The felony charge proceeded to preliminary hearing on November 6, 1998, at which the magistrate found that the requisite probable cause existed to bind the matter over to the grand jury. During the February 1999 term of the Berkeley County Grand Jury, Appellant was named in a two-count indictment: Count I charged Appellant with the felony of third offense DUI in violation of West Virginia Code § 17C-5-2(k); *fn3
Count II charged Appellant with the misdemeanor of driving a motor vehicle when the privilege to drive has been revoked for DUI in violation of West Virginia Code § 17B-4-3(b). *fn4
Appellant was not arraigned on these charges until August 7, 2000. *fn5
Among the issues considered by the lower court at an October 31, 2000, pretrial hearing which are relevant to this appeal, were Appellant's motions to suppress evidence obtained as a result of the arrest; to bifurcate jury consideration of the felony DUI charge from the prior DUI convictions; to sever the two counts of the indictment for separate trials; and to dismiss both charges before the circuit court and remand the matters, as appropriate, for trial in magistrate court. The record reflects that these motions were denied after receiving individual attention by the lower court at the hearing, and that the basis for the denial of each was later memorialized by the court in a Pre-Trial Hearing Order entered on January 23, 2001.
A two-day trial by jury was begun on November 2, 2000. The State rested following the testimony of its sole witness, Officer Sherman. Thereafter, Appellant moved for and was denied judgment of acquittal for both charges. At the conclusion of its deliberations on November 3, 2000, the jury returned a guilty verdict as to both counts of the indictment. Post trial, Appellant filed another motion for judgment of acquittal, which the trial court again denied. Thereafter on January 9, 2001, the trial court sentenced Appellant to six months in jail for the driving revoked for DUI conviction and one-to-three years in the penitentiary for the third offense DUI conviction, with the sentences to run consecutively. The trial court then suspended the penitentiary sentence and granted Appellant the alternative sentence of home incarceration. *fn6
The sentencing order was reentered on August 27, 2001, after the lower court granted Appellant's motion to do so in order to enlarge the
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