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State v. McCraine5/16/2003
g reasons have been raised regarding the retroactive application of the new rule announced in Games-Neely regarding severance. Consequently, we now contemplate the relevance of Games-Neely to the severance issue before us in this appeal.
Although consideration of the applicable rulings in Games-Neely is proper in this case, we find that Appellant misapprehends the extent of those rulings. We began our discussion in Games-Neely with the recognition that the State has a mandatory duty under Rule 8(a) of the West Virginia Rules of Criminal Procedure to join in a single charging document all offenses arising from
"the same act or transaction, or on two or more acts or transactions, connected together or constituting parts of a common scheme or plan, whether felonies, misdemeanors or both, provided that the offenses occurred in the same jurisdiction, and the prosecuting attorney knew or should have known of all the offenses, or had an opportunity to present all offenses prior to the time that jeopardy attaches in any one of the offenses." 211 W.Va. at 303, 565 S.E.2d at 425, quoting Syl. Pt. 3, State ex rel. Forbes v. Canady, 197 W.Va. 37, 475 S.E.2d 37 (1996).
Consequently, no error is committed because a magistrate grants the State's motion to dismiss charges, including charges the magistrate previously severed due to the defendant's assertion of the statutory right to trial in magistrate court. We specifically held in syllabus point seven of Games-Neely that "[t]he statutory right to trial in magistrate court granted by West Virginia Code § 50-5-7 (1976) (Repl. Vol. 2000) cannot be exercised if the misdemeanor trial in magistrate court would bar the felony trial in circuit court, based upon principles of double jeopardy." 211 W.Va. at 301, 565 S.E.2d at 422. We further observed in Games-Neely that even though the State has a duty to join related offenses, the trial court retains the discretion to sever the charges under the provisions of Rule 14(a) of the West Virginia Rules of Criminal Procedure on the grounds that joinder of the offenses is prejudicial to the defendant. We thereafter found the trial court's discretion tempered by the statutory right to trial in magistrate court by holding in syllabus point nine that:
West Virginia Code § 50-5-7 (1976) (Repl. Vol. 2000), granting the right to trial in magistrate court, is couched in terms of a right rather than simply a procedural norm. It is designed to grant a person first charged in magistrate court the right to maintain the action in magistrate court. In applying this statute, courts should attempt to provide the statute as much force and effect as possible without impinging upon established double jeopardy principles. Id., 556 S.E.2d at 423.
Application of this holding to the facts in Games-Neely resulted in our finding that:
[t]he defendant based the request for remand upon the right to trial in magistrate court conferred by statute. If application of the statute would prevent trial of the related felony in circuit court based upon constitutional principles of double jeopardy, a lower court could not remand the misdemeanor to magistrate court and would be compelled to retain both the felony and the misdemeanor for trial in circuit court. Where, as in the present case, application of the statute does not create a situation in which separate prosecution of the felony would be barred by principles of double jeopardy, the statutory right to trial of the misdemeanor counts in magistrate court must prevail. Id. at 307, 565 S.E.2d at 429.
We concluded that each of the offenses with which the defendant in Games-Neely was charged did not violate double jeopardy principles because each of the charges re
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