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State v. McCraine5/16/2003
time which has elapsed since we handed down our decision in Nichols. Our departure from strict application of the doctrine of stare decisis is obviously warranted under the circumstances of this case in order to safeguard a criminal defendant's right to a fair trial. As we said in Nichols, "'[t]he binding effect of a judicial opinion on future generations should not be based on the number of years that have passed since the opinion was issued by a Court, but rather should be found in the strength of the Court's reasoning in the opinion, and the fairness of its result.' State v. Morris, 203 W.Va. 504, 510, 509 S.E.2d 327, 333 (1998) (Starcher, J., dissenting)." 208 W.Va. at 445 n. 23, 541 S.E.2d at 323 n. 23.
In view of the foregoing, the judgment involving the third offense DUI conviction is reversed and the case is remanded for a new, bifurcated trial. *fn21
F. Lesser Included Offense Instructions
Appellant's final assignment of error, involving the trial court's refusal to instruct the jury that first and second offense DUI are lesser included offenses of a third offense DUI, is essentially moot in light of our ruling with respect to the DUI charge. We note, however, for guidance to the trial court upon remand, in the context of the prior conviction phase of the bifurcated proceeding, that the standard we apply in determining whether a criminal defendant is entitled to a requested lesser included offense instruction as summarized in syllabus point one, in part, of State v. Jones, 174 W.Va. 700, 329 S.E.2d 65 (1985), involves the following two-part inquiry:
The first inquiry is a legal one having to do with whether the lesser offense is by virtue of its legal elements or definition included in the greater offense. The second inquiry is a factual one which involves a determination by the trial court of whether there is evidence which would tend to prove such lesser included offense. State v. Neider, 170 W.Va. 662, 295 S.E.2d 902 (1982).
IV. Conclusion
Based upon the foregoing, Appellant's convictions and sentences for first offense driving revoked for DUI and third offense DUI are reversed and the case is remanded to the Circuit Court of Berkeley County for further proceedings consistent with this opinion.
Reversed and remanded.
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