City of Philippi v. Weaver

540 S.E.2d 563, 208 W. Va. 346
CourtWest Virginia Supreme Court
DecidedDecember 13, 2000
Docket27259
StatusPublished
Cited by14 cases

This text of 540 S.E.2d 563 (City of Philippi v. Weaver) is published on Counsel Stack Legal Research, covering West Virginia Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
City of Philippi v. Weaver, 540 S.E.2d 563, 208 W. Va. 346 (W. Va. 2000).

Opinions

PER CURIAM:

This is an appeal by Tamara S. Weaver (hereinafter “Appellant”) from a June 11, 1999, order of the Circuit Court of Barbour County affirming the Appellant’s municipal court jury conviction of first offense driving under the influence of alcohol (hereinafter “DUI”). The Appellant contends that numerous errors allegedly committed at the municipal court level warrant reversal of that conviction. Upon thorough review of the record, we find that the lower court committed no reversible error and affirm the determination of the lower court.

I. Facts

On August 15, 1998, the Appellant, age thirty-eight, was operating a vehicle in Phi-lippi, West Virginia (hereinafter “City”). She was apprehended by police officers after she allegedly created a disturbance at a fast food restaurant. Her breath test registered .165, and she was charged with first offense DUI.

A municipal court jury trial was conducted on April 20, 1999, and the Appellant was found guilty of first offense DUI, sentenced to fifteen days in jail, and fined $250, plus court costs. Although a court reporter did not attend the trial, the trial was videotaped. During trial, the Appellant challenged the [349]*349validity of the breath test and asserted that she had consumed only a very limited amount of alcohol at brunch earlier in the day.

On June 11, 1999, a final judgment was entered by the Circuit Court of Barbour County affirming the verdict of the Municipal Court in a Memorandum Opinion and Order. The lower court also ordered the Appellant to report to the Barbour County Jail on July 6, 1999, at 9:00 am to begin serving her sentence. On July 14, 1999, in response to the Appellant’s Petition for Work Release, the lower court converted the Appellant’s fifteen-day jail sentence into a combination of jail time and work release, allowing the Appellant to serve only seven days in jail and eight days work release.

II. Timeliness of Appeal

Prior to deliberation of the substantive issues advanced by the Appellant, an initial inquiry must be conducted into the City’s contention that this appeal was not filed in a timely fashion. The lower court’s final judgment was entered on June 11,1999. The expiration of the thirty-day period within which to file a notice of intent to appeal thus expired on July 12, 1999.1 The notice of intent to appeal was filed on September 14, 1999, approximately two months late. Additionally, the four-month appeal period expired on October 11, 1999, and the appeal was not filed with this Court until November 15, 1999, over one month late.

While the Appellant suggests that the July 14, 1999, modification order could technically qualify as the order appealed from, thereby extending the periods within which to file the notice of intent to appeal and the appeal, such contention is unconvincing. The Appellant is not disputing the elements of the modification of sentence contained in the July 14, 1999, order, but is rather appealing the alleged errors of the lower court encompassed within the June 11, 1999, order. It is the conviction the Appellant is seeking to reverse on appeal, not the authorization to serve days of work release in exchange for days of confinement. Utilization of the July 14,1999, order to establish the appellate time constraints would be a inappropriate.2

III. Failure to Preserve Error

Despite our conclusion that the appeal should not be considered due to untimely filing, we are compelled to observe that the Appellant also failed to preserve her allegations of substantive error for appeal. For instance, the Appellant contends that the lower court erred in permitting the prompting of a juror, Mr. Denzil Lantz, during jury polling, and the Appellant has submitted affidavits indicating that the jury foreman told Juror Lantz to say “guilty” during the polling. Mr. Lantz was apparently unable to hear the court’s question regarding guilt or innocence. Once Mr. Lantz was informed by two other jurors about the content of the question, Mr. Lantz answered, “Guilty.” No objection was raised regarding Mr. Lantz’ apparent inability to understand the court’s question.

The City maintains that there is no justification for reversing the Appellant’s conviction on the basis of alleged juror coercion, particularly because no objection was asserted during or after the polling of the jury preserving this issue for appeal. We agree with the contentions of the City and additionally note that the Appellant has [350]*350failed to generate a showing of prejudice by this juror’s conduct, such that the incident would not necessarily constitute reversible error even if it had been properly preserved by objection below.3

In syllabus point three of O’Neal v. Peake Operating Co., 185 W.Va. 28, 404 S.E.2d 420 (1991), this Court explained the forfeiture of appellate options as follows: “ Where objections were not shown to have been made in the trial court, and the matters concerned were not jurisdictional in character, such objections will not be considered on appeal.’ Syllabus Point 1, State Road Commission v. Ferguson, 148 W.Va. 742, 187 S.E.2d 206 (1964).” 185 W.Va. at 29, 404 S.E.2d at 421, Syl. Pt. 3.

In Hanlon v. Logan County Board of Education, 201 W.Va. 305, 496 S.E.2d 447 (1997), we explained as follows:

“ ‘To preserve an issue for appellate review, a party must articulate it with such sufficient distinctiveness to alert a circuit court to the nature of the claimed defect. The rule in West Virginia is that parties must speak clearly in the circuit court[,] on pain that, if they forget their lines, they will likely be bound forever to hold their peace.... It must be emphasized that the contours for appeal are shaped at the circuit court level by setting forth with particularity and at the appropriate time the legal ground upon which the parties intend to rely.’ ”

Id. at 315, 496 S.E.2d at 457 (quoting State v. Browning, 199 W.Va. 417, 425, 485 S.E.2d 1, 9 (1997) (quoting State ex rel. Cooper v. Caperton, 196 W.Va. 208, 216, 470 S.E.2d 162, 170 (1996) (citation omitted))). Rule 51 of the West Virginia Rules of Criminal Procedure provides, in pertinent part, as follows:

Exceptions to rulings or orders of the court are unnecessary and for all purposes for which an exception has heretofore been necessary it is sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action which that party desires the court to take or his or her objection to the action of the court and the grounds therefor[.]

“A litigant may not silently acquiesce to an alleged error, or actively contribute to such error, and then raise that error as a reason for reversal on appeal.” Syl. Pt. 1, Maples v. West Virginia Dept. of Commerce, Div. of Parks and Recreation, 197 W.Va. 318, 475 S.E.2d 410

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City of Philippi v. Weaver
540 S.E.2d 563 (West Virginia Supreme Court, 2000)

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Bluebook (online)
540 S.E.2d 563, 208 W. Va. 346, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-philippi-v-weaver-wva-2000.