At the September 4 conference, further information was exchanged and the magistrate set the trial for the next available date--November 18, 2002. As trial was prepared to begin on November 18, Dr. Brum filed with the magistrate a motion to dismiss arguing that as he was arrested on June 6 but was not brought to trial until November 18. As such, his trial exceeded the one term rule of West Virginia Code § 62-3-21 (1959) (Repl. Vol. 2000) as made applicable to magistrate proceedings by State ex rel. Stiltner v. Harshbarger, 170 W. Va. 739, 296 S.E.2d 861 (1982).   (See footnote 3)  The magistrate court denied the motion “[d]ue to [an] overcrowded Court Docket.” On that same day, Dr. Brum filed a Petition for a mandamus/prohibition with the Wood County Circuit Court. At a hearing on Dr. Brum's motion, which was held that same day, the circuit court ruled against the State. In its written order of December 17, 2002, the circuit court found that the November 18 trial date exceed the 120 day rule and dismissal was required. The order, however, did not specify whether the dismissal was with or without prejudice.

    On May 5, 2003, during a hearing in a separate case, the circuit court was informed that its prior orders dismissing a number of magistrate court criminal proceedings for violating the120 day rule were being construed as being with prejudice and prohibiting the institution of new proceedings. The circuit court indicated that because the prior orders entered did not specifically say “with prejudice” that each dismissal was without prejudice.

As a result thereof, a new arrest warrant was issued for Dr. Brum. Dr. Brum's trial under the new warrant was set for June 2, 2003, but was continued until September 23, 2003. However, trial was continued at Dr. Brum's request. The September 23 trial was stayed after we issued a show cause order in this case.

    Our analysis begins with two related Code provisions, W. Va. Code §§ 62-3-1 (1981) (Repl. Vol. 2000), and 62-3-21 (1959) (Repl. Vol. 2000). W. Va. Code § 62-3-1, commonly called the “one term rule,” provides, that one charged by indictment shall be tried within one term of court unless good cause for a continuance is shown. W. Va. Code § 62-3- 21, commonly called the “three term rule,” provides that a person subject to an indictment or present must be tried within three-terms of court unless certain limited enumerated exceptions are satisfied.

    We clarified the relationship between these two provisions in syllabus point 1 of State ex rel. Shorter v. Hey, 170 W. Va. 249, 294 S.E.2d 51 (1982):

        Whereas W. Va. Code, 62-3-1, provides a defendant with a statutory right to a trial in the term of his indictment, it is W. Va. Code, 62-3-21, rather than W. Va. Code, 62-3-1, which is the legislative adoption or declaration of what ordinarily constitutes a speedy trial within the meaning of U.S. Const., amend. VI and W. Va. Const., art. III, § 14. State ex rel. Smith v. DeBerry, 146 W. Va. 534, 538, 120 S.E.2d 504, 506 (1961).

    Thus, as Shorter makes clear “[t]he one-term rule is not a right of constitutional dimension . . . .” State ex rel. Murray v. Sanders, 208 W. Va. 258, 262, 539 S.E.2d 765, 769 (2000) (per curiam).

    In syllabus point 2 of State ex rel. Stiltner v. Harshbarger, 170 W. Va. 739, 296 S.E.2d 861 (1982), we adopted a 120 day rule for magistrate courts by analogy to W. Va. Code § 62-3-1 and held that a criminal trial in magistrate court should occur within 120 days of issuance of the warrant unless good cause as defined by W. Va. Code § 62-3-1 exists.   (See footnote 4)  Likewise, in syllabus point 3 of Stiltner, we recognized that unless one of the enumerated exceptions contained in W. Va. Code § 62-3-21 applied, a magistrate court criminal trial “must be commenced within one year of the issuance of the criminal warrant[.]”
        
    Here, the circuit court found that Dr. Brum's November 18 trial exceeded the 120 days within which the State had to try Dr. Brum. The prohibition order, however, failed to indicate whether the dismissal was with or without prejudice. Normally, however, when a trial court dismisses a case on non-constitutional grounds, and the order does not otherwise specify, the dismissal is without prejudice. See, e.g., United States v. Stoker, 522 F.2d 576, 580 (5^th Cir. 1975) (dismissal order based on non-constitutional ground and not stating dismissal is “with prejudice” means it is “without prejudice”); United States v. Clay, 481 F.2d 133, 135 (7^th Cir. 1972) (footnotes omitted) (noting that a “dismissal may rest on a non- constitutional ground . . . and normally such a dismissal is without prejudice to a subsequent prosecution.”); State v. Benn, 713 S.W.2d 308, 310 (Tenn. 1986) (similar). See also State v. Roca, 203 Ga. App. 267, 268, 416 S.E.2d 836, 836-37 (1992) (trial court's dismissal of case because on day of trial State's witness failed to appear was construed to be without prejudice when it did not specify that it was with prejudice.).   (See footnote 5)  Here, the dismissal was based upon a violation of the non-constitutional 120 day rule and did not specify that it was with prejudice. Thus, we find that it was without prejudice.   (See footnote 6)