Preview:

SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2000 Term

FILED
June 9, 2000
DEBORAH L. McHENRY, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA

_________________ No. 27469 _________________

RELEASED
June 9, 2000
DEBORAH L. McHENRY, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA

STATE OF WEST VIRGINIA EX REL. LARRY F. PARSONS, ADMINISTRATOR OF THE SOUTH CENTRAL REGIONAL JAIL, Petitioner v. HONORABLE PAUL ZAKAIB, JR., JUDGE OF THE CIRCUIT COURT OF KANAWHA COUNTY, AND GERALD K. MOLLOHAN, Respondents

________________________________________________________________ Petition for Writ of Prohibition WRIT OF PROHIBITION, AS MOULDED, GRANTED ________________________________________________________________ Submitted: May 2, 2000 Filed: June 9, 2000 William C. Forbes Prosecuting Attorney Michael C. Allen Special Prosecuting Attorney Charleston, West Virginia Attorneys for Petitioner Linda Gay Assistant Public Defender Charleston, West Virginia Attorney for Respondents

JUSTICE McGRAW delivered the Opinion of the Court.

SYLLABUS BY THE COURT

1.

"`Prohibition lies only to restrain inferior courts from proceeding in causes over

which they have no jurisdiction, or, in which, having jurisdiction, they are exceeding their legitimate powers and may not be used as a substitute for writ of error, appeal or certiorari.' Syl. pt. 1, Crawford v. Taylor, 138 W. Va. 207, 75 S.E.2d 370 (1953)." Syllabus point 2, Cowie v. Roberts, 173 W. Va. 64, 312 S.E.2d 35 (1984).

2.

"In determining whether to entertain and issue the writ of prohibition for cases not

involving an absence of jurisdiction but only where it is claimed that the lower tribunal exceeded its legitimate powers, this Court will examine five factors: (1) whether the party seeking the writ has no other adequate means, such as direct appeal, to obtain the desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not correctable on appeal; (3) whether the lower tribunal's order is clearly erroneous as a matter of law; (4) whether the lower tribunal's order is an oft repeated error or manifests persistent disregard for either procedural or substantive law; and (5) whether the lower tribunal's order raises new and important problems or issues of law of first impression. These factors are general guidelines that serve as a useful starting point for determining whether a discretionary writ of prohibition should issue. Although all five factors need not be satisfied, it is clear that the third factor, the existence of clear error as a matter of law, should be given substantial weight." Syllabus point 4, State ex rel. Hoover v. Berger, 199 W. Va. 12, 483 S.E.2d 12 (1996).

i

3.

In proceedings under the West Virginia Post-Conviction Habeas Corpus Act,

W. Va. Code

Download 27469-0.pdf

West Virginia Law