State of West Virginia v. Brent Levi McGilton (Separate)
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No. 11-0410 State v. McGilton FILED June 19, 2012 R O R Y L. P E R R Y II, C LE R K S U P R E M E C O U R T O F AP P E ALS O F W E S T V IR G IN IA Ketchum, C.J., dissenting: The defendant stabbed the victim during a single, brief episode. Following this single incident, the defendant was charged with three counts of malicious assault. Charging a defendant with three counts of malicious assault following a single incident is a clear double jeopardy violation. In Syllabus Point 1 of State v. Rummer, 189 W.Va. 369, 432 S.E.2d 39 (1993), this Court held: The Double Jeopardy Clause in Article III, Section 5 of the West Virginia Constitution, provides immunity from further prosecution where a court having jurisdiction has acquitted the accused. It protects against a second prosecution for the same offense after conviction. It also prohibits multiple punishments for the same offense. Syllabus Point 1, Conner v. Griffith, 160 W.va. 680, 238 S.E.2d 529 (1977). Our Constitution prohibits multiple punishments for the same offense. The defendant was charged and sentenced on three counts of malicious assault following a single, brief incident. The defendant should have been charged with one count of malicious assault. For this reason, I respectfully dissent. I am authorized by Justice Benjamin to state that he joins in this dissent.
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