State v. Carrico
In State v. Carrico, 189 W. Va. 40, 427 S.E.2d 474 (1993)the trial court permitted the prosecutor to nolle prosequi the first indictment against the defendant and obtain a second indictment charging the same offenses.
After the defendant's conviction he appealed arguing that he was denied a speedy trial.
The Court rejected the argument and held that "the prosecution is entitled to re-indict after a nolle prosequi if the prosecution can conduct the trial within the constraints of the three-term rule." Carrico, 189 W. Va. at 45, 427 S.E.2d at 479.
The Court explained the difference between the one-term rule of W. Va. Code 62-3-1 and the three-term rule of W. Va. Code 62-3-21 (2000) as follows:
"The three-term rule provides that a post-indictment delay cannot be much longer than a year without an act on the defendant's part to extend the term between indictment and trial; the three-term rule operates no matter whether the defendant asks for a trial . . .; the "one-term" rule . . . prevents extreme prejudice against a defendant for delay, for if an event that may cause prejudice is impending and the defendant moves for a trial within one-term of court, the prosecution will need to show a high level of "good cause" to persuade the court to continue the case."
(Carrico, 189 W. Va. at 44, 427 S.E.2d at 478.)