                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


Alfred Joseph Munoz,

Petitioner Below, Petitioner                                                             FILED

                                                                                  November 23, 2015
vs) No. 15-0140 (Doddridge County 14-P-16)                                         RORY L. PERRY II, CLERK
                                                                                SUPREME COURT OF APPEALS
                                                                                     OF WEST VIRGINIA
Doddridge County Magistrate Olivia A.

Adams, and A. Brooke Fitzgerald,

Prosecuting Attorney of Doddridge

County, West Virginia,

Respondents Below, Respondents



                               MEMORANDUM DECISION
        Pro se petitioner Alfred J. Munoz appeals the Circuit Court of Doddridge County’s
January 22, 2015, order denying his petition for writ of prohibition. Respondents, by counsel
Laura Young, filed a response. On appeal, petitioner alleges that the circuit court erred in
denying his petition and failing to order the magistrate court to make a more sufficient statement
of findings in denying petitioner’s motion to dismiss the criminal charges pending against him in
the magistrate court.

        This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.

        In September of 2012, petitioner was arrested for the offense of driving under the
influence of alcohol (“DUI”). The matter proceeded in magistrate court and was continued on
petitioner’s oral motion at least three times. The matter was scheduled for a jury trial on June 21,
2013, at petitioner’s request. However, based upon petitioner’s assertions that he intended to
enter a plea on that date, the magistrate did not call in a jury for the June 21, 2013, hearing date.
Upon petitioner’s stated desire to no longer enter a plea, the magistrate dismissed the case,
without prejudice, notwithstanding the fact that petitioner did not request a continuance at that
time.

       Thereafter, in August of 2013, the charge was re-filed as a second-offense DUI and the
warrant was executed on September 20, 2013. The matter was scheduled for a pretrial hearing in
November of 2013, and the parties agreed to schedule the matter for a jury trial. In February of
2014, petitioner filed a motion to dismiss the case, arguing that the prosecution was barred under


                                                     1


the statute of limitations. The magistrate held a hearing that same month and denied the motion
to dismiss.

        Thereafter, petitioner filed a motion requesting a stay of the magistrate court proceedings
in order to file a petition for writ of prohibition in the circuit court. Despite requesting the stay in
February of 2014, the circuit court found that petitioner did not file his petition until June of
2014. The circuit court held a hearing on the petition in October of 2014, after which it denied
the same. It is from the resulting order that petitioner appeals.

       To begin, we have previously stated that

               “[a] writ of prohibition will not issue to prevent a simple abuse of
       discretion by a trial court. It will only issue where the trial court has no
       jurisdiction or having such jurisdiction exceeds its legitimate powers. W.Va.Code
       [§] 53-1-1.” Syl. Pt. 2, State ex rel. Peacher v. Sencindiver, 160 W.Va. 314, 233
       S.E.2d 425 (1977).

Syl. Pt. 1, State ex rel. Nelson v. Frye, 221 W.Va. 391, 655 S.E.2d 137 (2007). In addressing
petitioner’s assignment of error concerning the sufficiency of the magistrate court’s findings in
its order denying his motion to dismiss, we note that this assignment of error is improper for a
writ of prohibition. Petitioner’s argument in this regard neither alleges that the magistrate court
lacked jurisdiction nor exceeded its legitimate powers in setting forth the allegedly deficient
findings. In fact, petitioner’s argument on this issue instead appears to inappropriately seek
appellate review of those findings. For these reasons, we find no error in the circuit court
denying petitioner’s request to direct the magistrate court to make a more sufficient statement of
findings regarding his motion to dismiss.

       As to petitioner’s second assignment of error asserting that the circuit court erred in
denying his petition for writ of prohibition, we find no error. On appeal, petitioner asserts that he
was entitled to the writ of prohibition because the State was barred from prosecuting him on the
charge of DUI, second offense. Specifically, petitioner argues that, pursuant to West Virginia
Code § 62-3-21, the State was prohibited from prosecuting him because one year elapsed after he
was charged and he was not tried on the offense.1 However, petitioner fails to recognize that this

       1
        While West Virginia Code § 62-3-12 does not explicitly reference a statute of limitations
for magistrate court, we have previously stated that

               “[u]nless one of the reasons specifically set forth in W.Va.Code [§] 62-3­
       21 [1959] for postponing criminal trials in circuit court beyond three terms of the
       circuit court exists, a criminal trial in magistrate court must be commenced within
       one year of the [execution] of the criminal warrant and lack of good cause for
       delay beyond one year as defined in Code [§] 62-3-21 [1959] should be presumed
       from a silent record.” Syllabus Point 3, as modified, State ex rel. Stiltner v.
       Harshbarger, 170 W.Va. 739, 296 S.E.2d 861 (1982).

Syl. Pt. 5, State ex rel. Johnson v. Zakaib, 184 W.Va. 346, 400 S.E.2d 590 (1990).
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statute specifically states that an exception to this rule exists in instances where “the failure to try
[the defendant] was caused by . . . a continuance granted on the motion of the accused . . . .” The
record in this matter is clear that petitioner moved for, and received, at least three continuances
in the proceedings below.

        While petitioner argues that there is nothing in the record to establish that he moved for
any continuances, the Court does not agree. Specifically, the magistrate that presided over
petitioner’s first proceeding testified that petitioner was granted multiple continuances. The
record shows that the magistrate testified to continuances granted on petitioner’s oral motion at
hearings in October of 2012, November of 2012, and February of 2013. According to the
magistrate’s testimony, petitioner requested these continuances for a variety of reasons,
including awaiting the outcome of related hearings. Admittedly, the magistrate did not reduce
petitioner’s requests for continuances to writing, but testified that she allowed petitioner to orally
move for continuances because of his status as an officer of the court and her belief that he could
be trusted to proceed accordingly.2

        Contrary to petitioner’s argument that the record is silent as to his requesting a
continuance in the magistrate proceedings, the record is, in fact, silent to any party other than
petitioner requesting a continuance. As such, the circuit court specifically found that “[t]he State
neither sought nor was afforded any continuances.” For these reasons, it is clear that the circuit
court did not err in denying petitioner’s petition for writ of prohibition because the failure to try
him within a year of the execution of the criminal warrant was attributable to his own requests
for continuances.

        For the foregoing reasons, the circuit court’s January 22, 2015, order denying his petition
for writ of prohibition is hereby affirmed.


                                                                                             Affirmed.

ISSUED: November 23, 2015

CONCURRED IN BY:

Chief Justice Margaret L. Workman
Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Menis E. Ketchum
Justice Allen H. Loughry II




       2
       According to the West Virginia State Bar, petitioner is a licensed attorney in the State of
West Virginia.
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