State v. Green
In State v. Green, 207 W.Va. 530, 534 S.E.2d 395 (2000), the Court examined the uttering statute (W.Va. Code 61-4-5 (1998) (Repl.Vol.2000)) to determine whether a conviction for ten counts of uttering that arose from the contemporaneous presentment of ten forged money orders was sustainable.
The issue of a double jeopardy violation arose from the prospect of multiple punishments being levied for the same offense.
The Court explained in Green that the analysis of "whether a criminal defendant may be separately convicted and punished for multiple violations of a single statutory provision turns upon the legislatively-intended unit of prosecution." 207 W.Va. at 537, 534 S.E.2d at 402.
In upholding the conviction for ten separate counts of uttering in Green, the Court first determined that the unit of prosecution established by the Legislature in West Virginia Code 61-4-5(a) (1998) (Repl.Vol.2000) was singular in nature.
In making that determination, the Court looked to the term "any" and its use in the statute to conclude that the Legislature intended to permit each writing that was forged to constitute a separate offense.
West Virginia Code 61-4-5(a) provides that:
If any person forge any writing, other than such as is mentioned in the first and third sections of this article, to the prejudice of another's right, or utter or attempt to employ as true such forged writing, knowing it to be forged, he shall be guilty of a felony and, upon conviction, shall be confined in the penitentiary not less than one nor more than ten years, or, in the discretion of the court, be confined in jail not more than one year and be fined not exceeding five hundred dollars. Id.