On May 24, 2001, the defendant moved to remand the misdemeanors to magistrate court based upon this Court's decision in State v. Bruffey, 207 W. Va. 267, 531 S.E.2d 332 (2000).   (See footnote 2)  The lower court denied that motion, with no written order. On May 31, 2001, the defendant filed a petition for a writ of mandamus with this Court, and this Court granted a rule to show cause. Prior to any determination by this Court, the defendant moved to dismiss the petition.

    The lower court subsequently reversed itself sua sponte and granted the defendant's motion to remand the misdemeanors to magistrate court. The State seeks a writ of prohibition, contending that the lower court abused its discretion by reversing itself sua sponte and granting the defendant's motion to remand the misdemeanors to magistrate court. The State argues that such action was inconsistent with the mandatory joinder requirement of West Virginia Rule of Criminal Procedure 8(a)(2).

    In syllabus point three of State ex rel. Forbes v. Canady, 197 W.Va. 37, 475 S.E.2d 37 (1996), this Court explained:

        Rule 8(a) of the West Virginia Rules of Criminal Procedure compels the prosecuting attorney to charge in the same charging document all offenses based on the same act or transaction, or on two or more acts or transactions, connected together or constituting parts of a common scheme or plan, whether felonies, misdemeanors or both, provided that the offenses occurred in the same jurisdiction, and the prosecuting attorney knew or should have known of all the offenses, or had an opportunity to present all offenses prior to the time that jeopardy attaches in any one of the offenses.
Other states have similar or identical rules and have routinely reasoned that Rule 8 “is not inflexible and its protection may be waived.” Commonwealth v. Splain, 364 A.2d 384, 386 (Pa. Super. 1976); see also Commonwealth v. Green, 335 A.2d 493 (Pa. 1975).

See also State v. McGinnis, 193 W.Va. at 161-62 n. 20, 455 S.E.2d at 530-31 n. 20. In Mitter, this Court further explained as follows:

        Courts that have addressed the problem have recognized that joinder or consolidation may prejudice the defendant because the jury may tend to cumulate the evidence of the various offenses and convict the defendant on all offenses charged on the theory he is a bad individual rather than weigh the evidence separately on each offense. From the defense standpoint, trial on multiple offenses may make it difficult to establish separate defenses to individual charges. Furthermore, it may inhibit the defendant's ability to testify on his own behalf if he wishes to testify about some of the charges but not about others. Cross v. United States, 335 F.2d 987 (D.C.App.1964); Drew v. United States, 331 F.2d 85 (D.C.App.1964); 1 Wright, Federal Practice and Procedure § 222 (1969). See also, Meade v. State, 85 So.2d 613 (Fla.1956); Hadjis v. Iowa Dist. Court of Linn County, 275 N.W.2d 763 (Iowa 1979); Commonwealth v. Slavski, 245 Mass. 405, 140 N.E. 465 (1926); Commonwealth v. Tracey, 137 Pa.Super. 221, 8 A.2d 622 (1939)[.]

168 W. Va. at 543-44, 285 S.E.2d at 383.

    In attempting to rectify the apparent friction between the statutory right to trial in magistrate court and the procedural joinder rule, a court considering severance must examine how principles of double jeopardy may impact the severance decision.   (See footnote 5)  Upon examination, this Court finds that the statutory right to trial in magistrate court granted by West Virginia Code § 50-5-7 cannot be exercised if the misdemeanor trial in magistrate court would bar the felony trial in circuit court, based upon principles of double jeopardy. In effect, the statute operates to make it prejudicial not to grant a separate trial in magistrate court, unless principles of double jeopardy are violated.

    This interplay between the procedural joinder rule and principles of double jeopardy has been consistently recognized. In Watson, for instance, this Court was confronted with a situation in which the defendant was charged in one indictment with the murder of four persons. 166 W. Va. at 338, 274 S.E.2d at 441. After conviction for one of the murders, the defendant argued that double jeopardy barred further prosecution for the other murders. This Court denied that relief in prohibition and explained that “where multiple homicides occur even though they are in close proximity in time, if they are not the result of a single volitive act of the defendant, they may be tried and punished separately under the double jeopardy clause of Article III, Section 5 of the West Virginia Constitution.” Id. at 352-53, 274 S.E.2d at 448. The Court also formulated a procedural joinder rule,   (See footnote 6)  explaining as follows at syllabus point one:

        A defendant shall be charged in the same indictment, in a separate count for each offense, if the offenses charged, whether felonies or misdemeanors or both, are of the same or similar character, or are based on the same act or transaction, or are two or more acts or transactions connected together or constituting parts of a common scheme or plan.

166 W. Va. at 337, 274 S.E.2d at 440. With specific regard to issues of consistency between a procedural joinder rule and principles of double jeopardy, the Watson Court further explained as follows:

    It must be stressed, however, that any procedural rule on joinder is not designed to supplant the constitutional double jeopardy doctrine, since this latter doctrine will ultimately determine whether two related offenses are the “same offense” for double jeopardy purposes, which if so found will preclude not only separate trials but also separate punishments.

166 W. Va. at 344-45, 274 S.E.2d at 444.

    Ordinarily, a court rule emanating from our procedural rule-making power renders a conflicting statute inoperative. Syl. Pt. 1, Stern Brothers, Inc. v. McClure, 160 W.Va. 567, 236 S.E.2d 222 (1977) (“Under Article VIII, Section 8 [and Section 3] of the Constitution of West Virginia (commonly known as the Judicial Reorganization Amendment), administrative rules promulgated by the Supreme Court of Appeals of West Virginia have the force and effect of statutory law and operate to supersede any law that is in conflict with them”). However, West Virginia Code § 50-5-7, granting the right to trial in magistrate court, is couched in terms of a right rather than simply a procedural norm. It is designed to grant a person first charged in magistrate court the right to maintain the action in magistrate court. In applying this statute, courts should attempt to provide the statute as much force and effect as possible without impinging upon established double jeopardy principles.

    Thus, our inquiry must proceed to whether it is possible to give the statute effect in the present case without generating a double jeopardy predicament in which it would not be possible for the State to prosecute the defendant on the felony charge without controverting the double jeopardy principles. In syllabus point one of Conner v. Griffith, 160 W.Va. 680, 238 S.E.2d 529 (1977), this Court explained:

        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.

In State v. Gill, 187 W.Va. 136, 416 S.E.2d 253 (1992), this Court extensively examined the issue of double jeopardy where the same transaction constitutes a violation of more than one statutory provision. In syllabus point four of Gill, this Court stated:

        “[W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306, 309 (1932).

In syllabus point eight, the Gill Court further elaborated:

        In ascertaining legislative intent, a court should look initially at the language of the involved statutes and, if necessary, the legislative history to determine if the legislature has made a clear expression of its intention to aggregate sentences for related crimes. If no such clear legislative intent can be discerned, then the court should analyze the statutes under the test set forth in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed 306 (1932), to determine whether each offense requires an element of proof the other does not. If there is an element of proof that is different, then the presumption is that the legislature intended to create separate offenses.

Our examination of statutory offenses in Cline v. Murensky, 174 W. Va. 70, 322 S.E.2d 702 (1984), is illustrative. In syllabus point three of Cline, this Court held as follows:

        The statutory offenses of brandishing a weapon, W. Va. Code, 61-7-10 [1925], and carrying a weapon without a license, W. Va. Code 61-7-1 [1975], even when arising from a single criminal transaction, do not constitute the “same offense” under constitutional prohibitions against double jeopardy.

    Similarly, in State v. Johnson, 197 W. Va. 575, 476 S.E.2d 522 (1996), this Court explained that double jeopardy was not violated where a defendant had pled guilty in magistrate court to the offense of driving left of center and was subsequently prosecuted in circuit court for DUI, an offense arising from the same incident. This Court found, consistent with the principles enunciated in Gill, that the defendant was not being subjected to multiple prosecutions for the same offense where “driving left of center and DUI require proof of different facts.” Id. at 586, 476 S.E.2d at 533. This Court also observed that the prosecutor “would not have had knowledge of or the opportunity to attend the magistrate court proceeding involving the driving left of center violation.” Id. at 587, 476 S.E.2d at 534. Thus, “the State was not precluded by the procedural joinder rule from subsequently prosecuting the defendant for first offense DUI.” Id.

    As noted above, the defendant in the present case was charged with the felony offense of fleeing from a law enforcement officer, in violation of West Virginia Code § 61-5-17(g) (Supp. 2001), and the misdemeanor offenses of (1) DUI (West Virginia Code § 17C-5- 2(c)(2) (Supp. 2001)); (2) driving with a revoked license (West Virginia Code § 17B-4-3) (1999) (Repl. Vol. 2000); (3) driving left of center (West Virginia Code § 17C-7-6) (1999) (Repl. Vol. 2000); (4) reckless driving (West Virginia Code § 17C-5-3) (1979) (Repl. Vol. 2000); (5) speeding (West Virginia Code § 17C-6-1) (2000) (Repl. Vol. 2000); and (6) leaving the scene of an accident involving injury (West Virginia Code § 17C-4-1(a) (1999) Repl. Vol. 2000)).   (See footnote 7)  Our review of these statutory violations with which the defendant was charged leads to the conclusion that each offense requires an element of proof that the other does not. Thus, pursuant to Gill, there is a presumption that the legislature intended to create separate offenses and there is no double jeopardy violation when those offenses are tried separately.

    Even though the separate trial of the misdemeanors in magistrate court and the felony in circuit court may entail the offering of evidence of some of the same events in both courts, based upon the principles enunciated in Bruffey, we cannot conclude that the lower court abused its discretion in giving this statute effect under circumstances in which the State elected to commence criminal prosecution of the misdemeanors in magistrate court. The mere existence of a potential necessity to prove some of the same facts in two different forums is not determinative of the issue of applicability of West Virginia Code § 50-5-7.
    

    Based upon the foregoing, we deny the requested writ of prohibition and permit the lower court's decision to remand the misdemeanor counts to magistrate court to stand.