Mirandy v. Smith (Signed Opinion)Annotate this Case
During a 2007 fight, Smith attacked Thomas with a hammer, and, following a struggle over a loaded shotgun, Smith discharged the shotgun into Thomas’s leg. Thomas’s minor son (C.), was present. Smith was convicted of malicious assault involving a hammer, malicious assault involving a firearm, wanton endangerment of C., involving a firearm, and attempted murder, W. Va. Code sections 61-2-9(a), 61-7-12, 61-11-8, 61-2-1. After unsuccessful direct appeal, Smith sought habeas corpus relief, alleging violation of his due process rights and ineffective assistance of counsel. His memorandum of law argued that conviction and sentence for both the malicious assault of Thomas using a firearm and the wanton endangerment of C. involving a firearm placed Smith in double jeopardy. Before filing that memorandum, Smith did not mention the double jeopardy issue in any habeas filings, at trial, at sentencing, or on appeal. The court granted relief on the double jeopardy claim and permitted Smith to choose one of the two offending convictions and its corresponding sentence to be dismissed. He chose malicious assault with a firearm. The state filed an objection. The Supreme Court of Appeals reversed; the “same transaction” test may not be used to decide whether prosecution and punishment imposed under two distinct statutory provisions violates double jeopardy principles.