MILLER, Justice:
On January 4, 1981, Cornelius Bonham was arrested for driving while under the influence of alcohol, in violation of Beckley City Code, 13-49 (1977). He was tried in the Beckley Municipal Court and fined one hundred dollars. Pursuant to W.Va.Code, 8-34-1 (1969),1 the defendant exercised his right to an appeal de novo to the circuit court. After being tried before a jury, which found the defendant guilty, the Circuit Court of Raleigh County imposed a more severe sentence by fining the defendant one hundred fifty dollars, sentencing him to serve thirty days in jail, and suspending his driver’s license.
The defendant’s sole contention in this appeal is that the circuit court was precluded by our holding in State v. Eden, 163 W.Va. 370, 256 S.E.2d 868 (1979), from imposing a more severe sentence than that imposed by the municipal court. We agree.
In Eden, the defendant was initially fined fifty dollars by a justice of the peace for reckless driving. Subsequently, he chose to have a trial de novo in the circuit court, following the procedure established in W.Va.Code, 50-5-13 (1976). In the circuit court he was again convicted of reckless driving, fined two hundred dollars, and sentenced to thirty days in jail. We reversed the conviction and held in Syllabus Point 2:
“A defendant who is convicted of an offense in a trial before a justice of the peace and exercises his statutory right to obtain a trial de novo in the circuit court is denied due process when, upon conviction at his second trial, the sentencing judge imposes a heavier penalty than the original sentence. W.Va. Const, art. 3, § 10.”
Our holding in Eden, which has been consistently affirmed,2 was grounded [418]*418in our due process clause, W.Va. Const, art. Ill, § 10, which states: “No person shall be deprived of life, liberty, or property, without due process of law, and the judgment of his peers.” We have held in a number of cases that:
“The provisions of the Constitution of the State of West Virginia may, in certain instances, require higher standards of protection than afforded by the Federal Constitution.” Syllabus Point 2, Pauley v. Kelly, 162 W.Va. 672, 255 S.E.2d 859 (1979).
See also Champ v. McGhee, 165 W.Va. 567, 270 S.E.2d 445 (1980); Hendershot v. Hendershot, 164 W.Va. 190, 263 S.E.2d 90 (1980); Adkins v. Leverette, 161 W.Va. 14, 239 S.E.2d 496 (1977).
Furthermore, the United States Supreme Court has also recognized that a state supreme court may set its own constitutional protections at a higher level than that accorded by the federal constitution. Connecticut v. Johnson, 460 U.S. 73, 103 S.Ct. 969, 974 n.9, 74 L.Ed.2d 823, 830 n.9 (1983); Mills v. Rogers, 457 U.S. 291, 300, 102 S.Ct. 2442, 2449, 73 L.Ed.2d 16, 23 (1982); PruneYard Shopping Center v. Robins, 447 U.S. 74, 81, 100 S.Ct. 2035, 2040, 64 L.Ed.2d 741, 752 (1980); Oregon v. Hass, 420 U.S. 714, 719, 95 S.Ct. 1215, 1219, 43 L.Ed.2d 570, 575 (1975); Sibron v. New York, 392 U.S. 40, 60-61, 88 S.Ct. 1889, 1901-02, 20 L.Ed.2d 917, 933-34 (1968). There are a number of cases where state supreme courts have set a higher level of protection under their own constitutions. E.g., People v. Rucker, 26 Cal.3d 368, 605 P.2d 843, 162 Cal.Rptr. 13 (1980); O’Conner v. Johnson, 287 N.W.2d 400 (Minn.1979); State v. Hunt, 91 N.J. 338, 450 A.2d 952 (1982); State v. Schmid, 84 N.J. 535, 423 A.2d 615 (1980); Cooper v. Morin, 49 N.Y.2d 69, 399 N.E.2d 1188, 424 N.Y.S.2d 168 (1979), cert. den., 446 U.S. 984, 100 S.Ct. 2965, 64 L.Ed.2d 840 (1980); State v. Cox, 94 Wash.2d 170, 615 P.2d 465 (1980).
In Eden, we explicitly rejected the United States Supreme Court’s holding in Colten v. Kentucky, 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1972), that a more severe sentence imposed following a trial de novo does not violate a defendant’s due process rights. In rejecting Colten, we said in Eden that the threat of an increased penalty arising from exercising the de novo appeal3 was a substantial deterrent to the right of a de novo appeal. We also recognized in Eden that the de novo appeal was in reality not an appeal because the defendant had no right to have the trial in the magistrate court reviewed on appeal for error.
Thus, a defendant, who wished to challenge the validity of his conviction, had to seek a de novo trial. To compound this burden by allowing the additional handicap that he could also be subjected to increased punishment was in our view a violation of our State due process standard. The United States Supreme Court in Colten did not answer to our satisfaction the critical issue of how a defendant, who believes that the evidence against him at the trial in the municipal or magistrate court was insufficient to convict or was otherwise constitutionally infirm, can correct this error without utilizing the de novo appeal. Yet, according to Colten, if he does request a de novo appeal, nothing prevents the state from enhancing its case and at the same time imposing a higher level of punishment.4
The Supreme Court of Alaska eloquently explains the rationale behind the due pro[419]*419cess bar against imposition of a higher sentence in Shagloak v. State, 597 P.2d 142, 145 (Alaska 1979):
“We believe if a more severe sentence may be imposed after retrial for any reason, there will always be a definite apprehension on the part of the accused that a heavier sentence may be imposed. Such apprehension or fear would place the defendant in an ‘incredible dilemma’ in considering whether to appeal the conviction. A ‘desperate’ choice exists, and may very well deter a defendant from exercising the right to assert his innocence and request a retrial. Such deterrence violates the due process clause of the Alaska Constitution. The fundamental standard of procedural fairness, which is the basic due process right claimed in this case, forbids placing a limitation on the defendant’s right to a fair trial by requiring a defendant to barter with freedom for the opportunity of exercising it.” (Footnote omitted)
Although Eden
Free access — add to your briefcase to read the full text and ask questions with AI
MILLER, Justice:
On January 4, 1981, Cornelius Bonham was arrested for driving while under the influence of alcohol, in violation of Beckley City Code, 13-49 (1977). He was tried in the Beckley Municipal Court and fined one hundred dollars. Pursuant to W.Va.Code, 8-34-1 (1969),1 the defendant exercised his right to an appeal de novo to the circuit court. After being tried before a jury, which found the defendant guilty, the Circuit Court of Raleigh County imposed a more severe sentence by fining the defendant one hundred fifty dollars, sentencing him to serve thirty days in jail, and suspending his driver’s license.
The defendant’s sole contention in this appeal is that the circuit court was precluded by our holding in State v. Eden, 163 W.Va. 370, 256 S.E.2d 868 (1979), from imposing a more severe sentence than that imposed by the municipal court. We agree.
In Eden, the defendant was initially fined fifty dollars by a justice of the peace for reckless driving. Subsequently, he chose to have a trial de novo in the circuit court, following the procedure established in W.Va.Code, 50-5-13 (1976). In the circuit court he was again convicted of reckless driving, fined two hundred dollars, and sentenced to thirty days in jail. We reversed the conviction and held in Syllabus Point 2:
“A defendant who is convicted of an offense in a trial before a justice of the peace and exercises his statutory right to obtain a trial de novo in the circuit court is denied due process when, upon conviction at his second trial, the sentencing judge imposes a heavier penalty than the original sentence. W.Va. Const, art. 3, § 10.”
Our holding in Eden, which has been consistently affirmed,2 was grounded [418]*418in our due process clause, W.Va. Const, art. Ill, § 10, which states: “No person shall be deprived of life, liberty, or property, without due process of law, and the judgment of his peers.” We have held in a number of cases that:
“The provisions of the Constitution of the State of West Virginia may, in certain instances, require higher standards of protection than afforded by the Federal Constitution.” Syllabus Point 2, Pauley v. Kelly, 162 W.Va. 672, 255 S.E.2d 859 (1979).
See also Champ v. McGhee, 165 W.Va. 567, 270 S.E.2d 445 (1980); Hendershot v. Hendershot, 164 W.Va. 190, 263 S.E.2d 90 (1980); Adkins v. Leverette, 161 W.Va. 14, 239 S.E.2d 496 (1977).
Furthermore, the United States Supreme Court has also recognized that a state supreme court may set its own constitutional protections at a higher level than that accorded by the federal constitution. Connecticut v. Johnson, 460 U.S. 73, 103 S.Ct. 969, 974 n.9, 74 L.Ed.2d 823, 830 n.9 (1983); Mills v. Rogers, 457 U.S. 291, 300, 102 S.Ct. 2442, 2449, 73 L.Ed.2d 16, 23 (1982); PruneYard Shopping Center v. Robins, 447 U.S. 74, 81, 100 S.Ct. 2035, 2040, 64 L.Ed.2d 741, 752 (1980); Oregon v. Hass, 420 U.S. 714, 719, 95 S.Ct. 1215, 1219, 43 L.Ed.2d 570, 575 (1975); Sibron v. New York, 392 U.S. 40, 60-61, 88 S.Ct. 1889, 1901-02, 20 L.Ed.2d 917, 933-34 (1968). There are a number of cases where state supreme courts have set a higher level of protection under their own constitutions. E.g., People v. Rucker, 26 Cal.3d 368, 605 P.2d 843, 162 Cal.Rptr. 13 (1980); O’Conner v. Johnson, 287 N.W.2d 400 (Minn.1979); State v. Hunt, 91 N.J. 338, 450 A.2d 952 (1982); State v. Schmid, 84 N.J. 535, 423 A.2d 615 (1980); Cooper v. Morin, 49 N.Y.2d 69, 399 N.E.2d 1188, 424 N.Y.S.2d 168 (1979), cert. den., 446 U.S. 984, 100 S.Ct. 2965, 64 L.Ed.2d 840 (1980); State v. Cox, 94 Wash.2d 170, 615 P.2d 465 (1980).
In Eden, we explicitly rejected the United States Supreme Court’s holding in Colten v. Kentucky, 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1972), that a more severe sentence imposed following a trial de novo does not violate a defendant’s due process rights. In rejecting Colten, we said in Eden that the threat of an increased penalty arising from exercising the de novo appeal3 was a substantial deterrent to the right of a de novo appeal. We also recognized in Eden that the de novo appeal was in reality not an appeal because the defendant had no right to have the trial in the magistrate court reviewed on appeal for error.
Thus, a defendant, who wished to challenge the validity of his conviction, had to seek a de novo trial. To compound this burden by allowing the additional handicap that he could also be subjected to increased punishment was in our view a violation of our State due process standard. The United States Supreme Court in Colten did not answer to our satisfaction the critical issue of how a defendant, who believes that the evidence against him at the trial in the municipal or magistrate court was insufficient to convict or was otherwise constitutionally infirm, can correct this error without utilizing the de novo appeal. Yet, according to Colten, if he does request a de novo appeal, nothing prevents the state from enhancing its case and at the same time imposing a higher level of punishment.4
The Supreme Court of Alaska eloquently explains the rationale behind the due pro[419]*419cess bar against imposition of a higher sentence in Shagloak v. State, 597 P.2d 142, 145 (Alaska 1979):
“We believe if a more severe sentence may be imposed after retrial for any reason, there will always be a definite apprehension on the part of the accused that a heavier sentence may be imposed. Such apprehension or fear would place the defendant in an ‘incredible dilemma’ in considering whether to appeal the conviction. A ‘desperate’ choice exists, and may very well deter a defendant from exercising the right to assert his innocence and request a retrial. Such deterrence violates the due process clause of the Alaska Constitution. The fundamental standard of procedural fairness, which is the basic due process right claimed in this case, forbids placing a limitation on the defendant’s right to a fair trial by requiring a defendant to barter with freedom for the opportunity of exercising it.” (Footnote omitted)
Although Eden involved a trial de novo from a magistrate court, we see no basis for distinguishing it from a de novo appeal from a municipal court. The statutory language relating to criminal appeals from magistrate courts, although not identical to W.Va.Code, 8-34-1 (1969), still provides for an “appeal” and a “[t]rial ... de novo” in circuit court. W.Va.Code, 50-5-13 (1976).5 As we have previously indicated, similar phraseology is used in W.Va.Code, 8-34-1 (1969).
We conclude that Syllabus Point 2 of Eden should be reaffirmed and modified to include municipal courts. Therefore, we hold that a defendant who is convicted of an offense in a trial before a magistrate or in municipal court and exercises his statutory right to obtain a trial de novo in the circuit court is denied due process when, upon conviction at his second trial, the sentencing judge imposes a heavier penalty than the original sentence. W.Va. Const, art. Ill, § 10.
For the foregoing reasons, the sentence of the Circuit Court of Raleigh County is reversed and the case is remanded for the purpose of reinstatement of the sentence imposed by the municipal court.
Reversed and Remanded.