# State v. McGilton

> West Virginia Supreme Court · June 19, 2012 · 229 W. Va. 554

URL: https://www.frixlaw.com/law-library/cases/8182693

## Case

- **Full name:** STATE of West Virginia, Below v. Brent Levi McGILTON, Below
- **Court:** West Virginia Supreme Court
- **Decided:** June 19, 2012
- **Citations:** 229 W. Va. 554; 729 S.E.2d 876; 2012 W. Va. LEXIS 319; 2012 WL 2368894
- **Precedential status:** Published
- **Opinion:** Dissent by Ketchum
- **Judges:** Benjamin, File, Ketchum, Opinions, Reserve, Right, Workman
- **Cited by:** 31 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8182693

## How later opinions describe it (automated extraction)

- holding that “[t]he Double Jeopardy Clause of the Fifth Amendment of the Constitution of the United States is applied to the states by the Fourteenth Amendment.”
- stating that convictions do not violate double jeopardy principles when “the facts demonstrate separate and distinct violations of the statute”

## Opinion text

KETCHUM, C.J.,
dissenting:
The defendant stabbed the victim during a single, brief episode. Following this single incident, the defendant was charged with three counts of malicious assault. Charging a defendant with three counts of malicious assault following a single incident is a clear double jeopardy violation.
In Syllabus Point 1 of State v. Rummer, 189 W.Va. 369 , 432 S.E.2d 39 (1993), this Court held:
‘The Double Jeopardy Clause in Article III, Section 5 of the West Virginia Constitution, provides immunity from further prosecution where a court having jurisdiction has acquitted the accused. It protects against a second prosecution for the same offense after conviction. It also prohibits multiple punishments for the same offense.’ Syllabus Point 1, Conner v. Griffith, 160 W.Va. 680 , 238 S.E.2d 529 (1977).
Our Constitution prohibits multiple punishments for the same offense. The defendant was charged and sentenced on three counts of malicious assault following a single, brief incident. The defendant should have been charged with one count of malicious assault.
For this reason, I respectfully dissent. I am authorized by Justice Benjamin to state that he joins in this dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8182693. Public record. Not legal advice.