I. Facts

    On September 10, 2001, the Grand Jury of Ohio County indicted the Petitioner on eight counts arising from crimes allegedly committed on August 21, 1999, and November 21, 1999.   (See footnote 1)  On November 20, 2001, the Petitioner and the State entered into a plea agreement in which the Petitioner pled guilty to two counts of “felon in possession of a firearm,” a violation of West Virginia Code § 61-7-7(b)(2). Pursuant to the plea agreement, the lower court dismissed the remaining six counts of the indictment with prejudice. At the time of plea negotiations and the entry of the plea, both the Petitioner and the State erroneously believed that the two counts to which the Petitioner pled guilty were felonies, based upon the version of West Virginia Code § 61-7-7(b)(2) in effect at the time of the plea negotiations. However, although that section had been amended to classify those crimes as felonies, effective June 8, 2000, the crimes were classified as misdemeanors at the time the Petitioner allegedly committed the crimes. Prior to sentencing, the lower court discovered the error and consequently found that the Petitioner could not have been lawfully charged with the felonies of “felon in possession of a firearm” and that the plea agreement was invalid and unenforceable. Thus, based upon the fact that the dismissal with prejudice of the remaining six counts was an integral part of an invalid plea agreement, the lower court reinstated the remaining six counts of the indictment and dismissed the counts of felon in possession of a firearm.   (See footnote 2) 

    The Petitioner requests a writ of prohibition, contending that the six counts had been dismissed with prejudice and cannot be reinstated against him without violating principles of double jeopardy. He further contends that the dismissal with prejudice, pursuant to the plea agreement, is binding upon both the defendant and the State, despite the mutual mistake regarding the classification of the crimes as misdemeanors or felonies. The State asserts that the lower court properly resolved the quagmire by withdrawing the plea agreement and reinstating the remaining six counts. The State contends that only a valid plea agreement is enforceable and binding and maintains that the plea agreement in the present case was not a valid and enforceable plea agreement because the sentence to be imposed was a legal impossibility based upon the mutual mistake regarding the classification of the crimes as felonies rather than misdemeanors. Thus, the State concludes that the lower court implemented the only proper remedy, voiding the agreement in its entirety and placing the parties, both the defendant and the State, in the positions they occupied prior to their execution of the plea agreement.

II. Standard of Review

    This Court expressly stated the standard of review applicable to a writ of prohibition in syllabus point one of State ex rel. United Hospital Center, Inc. v. Bedell, 199 W.Va. 316, 484 S.E.2d 199 (1997). We explained as follows:

         “'A writ of prohibition will not issue to prevent a simple abuse of discretion by a trial court. It will only issue where the trial court has no jurisdiction or having such jurisdiction exceeds its legitimate powers. W. Va. Code, 53-1-1.' Syl. pt. 2, State ex rel. Peacher v. Sencindiver, 160 W. Va. 314, 233 S.E.2d 425 (1977).” Syl. pt. 2, State ex rel. Kees v. Sanders, 192 W. Va. 602, 453 S.E.2d 436 (1994).

This Court elaborated on this standard of review in syllabus point four of State ex rel. Hoover v. Berger, 199 W. Va. 12, 483 S.E.2d 12 (1996), as follows:

        In determining whether to entertain and issue the writ of prohibition for cases not involving an absence of jurisdiction but only where it is claimed that the lower tribunal exceeded its legitimate powers, this Court will examine five factors: (1) whether the party seeking the writ has no other adequate means, such as direct appeal, to obtain the desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not correctable on appeal; (3) whether the lower tribunal's order is clearly erroneous as a matter of law; (4) whether the lower tribunal's order is an oft repeated error or manifests persistent disregard for either procedural or substantive law; and (5) whether the lower tribunal's order raises new and important problems or issues of law of first impression. These factors are general guidelines that serve as a useful starting point for determining whether a discretionary writ of prohibition should issue. Although all five factors need not be satisfied, it is clear that the third factor, the existence of clear error as a matter of law, should be given substantial weight.

    In determining the third factor, the existence of clear error as a matter of law, we will employ a de novo standard of review, as in matters in which purely legal issues are at issue. Syllabus point one of Chrystal R.M. v. Charlie A.L., 194 W. Va. 138, 459 S.E.2d 415 (1995), provided that “[w]here the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review.”

III. Discussion

A. West Virginia Jurisprudence

    In State ex rel. Morris v. Mohn, 165 W. Va. 145, 267 S.E.2d 443 (1980), this Court found that a guilty plea entered as part of a plea agreement that provides for an illegal sentence is invalid and must be vacated. In syllabus point one of Mohn, this Court stated: “A recognized corollary to the principle that a guilty plea must be shown to have been intelligently and voluntarily entered is the rule that if the plea is based on a plea bargain which is not fulfilled or is unfulfillable, then the guilty plea cannot stand.” In syllabus point three of Mohn, this Court addressed the issue of the invalidity of a plea agreement which is legally unfulfillable, explaining that “[a] guilty plea entered pursuant to a plea bargain which promises a concurrent sentence must be set aside where the promise of concurrency is not fulfilled.” See also Spencer v. Whyte, 167 W. Va. 772, 280 S.E.2d 591 (1981) (where plea bargain agreement imposed incarceration as a condition of probation, Court held that it contained unfulfillable element and had to be set aside). In Myers v. Frazier, 173 W. Va. 658, 319 S.E.2d 782 (1984), this Court discussed the Mohn and Spencer decisions and noted that both cases concluded that “since the pleas had to be invalidated, the defendants were subject to the original criminal charges that existed prior to plea bargaining.” 173 W. Va. at 672 n.22, 319 S.E.2d at 797 n.22.

    This Court also addressed the potential double jeopardy bar in Myers and concluded as follows in syllabus point thirteen: “The entry of a nolo contendere or a guilty plea pursuant to a plea bargain and the oral pronouncement of a sentence by a circuit court does not impose a double jeopardy bar where the defendant has not served any portion of the sentence.” The Court essentially determined that double jeopardy had simply not attached at that stage. This Court was adamant in Myers that “rules regarding the attachment of jeopardy at a jury or a nonjury trial cannot be directly transposed to the plea bargain process. . . .” 173 W. Va. at 671, 319 S.E.2d at 796. While Myers did not include a discussion of attachment of jeopardy to charges dismissed with prejudice, the assertions of Myers assist our current analysis. The Myers Court explained as follows:

        We have generally followed the United States Supreme Court's holdings with regard to when jeopardy attaches, as summarized in United States v. Martin Linen Supply Co., 430 U.S. 564, 569, 97 S.Ct. 1349, 1353, 51 L.Ed.2d 642, 650 (1977): 'The protections afforded by the [Double Jeopardy] Clause are implicated only when the accused has actually been placed in jeopardy. . . . This state of jeopardy attaches when a jury is empaneled and sworn, or, in a bench trial, when the judge begins to receive evidence.' (Citations omitted) See Syllabus Point 1, Adkins v. Leverette, W.Va., 264 S.E.2d 154 (1980); Syllabus Point 4, Manning v. Inge, W.Va., 288 S.E.2d 178 (1982).

173 W. Va. at 671, 319 S.E.2d at 795-96 (footnotes omitted). In footnote twenty of Myers, this Court explained:

        Even though jeopardy attaches at a certain stage in a plea bargain proceeding, this does not mean that it has become irretrieveably embedded. As illustrated in United States v. Tateo, 377 U.S. 463, 84 S.Ct. 1587, 12 L.Ed.2d 448 (1964), if a defendant is successful in setting aside his guilty plea conviction, the State is not barred from prosecuting him on the underlying offense. In Tateo, the United States Supreme Court recognized that while jeopardy had initially attached when the guilty plea was entered and sentence had been executed, the subsequent setting aside of the guilty plea because it was coerced did not preclude further prosecution because it was analogous to a reversal on appeal for trial error, citing United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896), and Forman v. United States, 361 U.S. 416, 80 S.Ct. 481, 4 L.Ed.2d 412 (1960). 173 W. Va. at 671 n.20, 319 S.E.2d at 796 n.20.

B. Other Jurisdictions

C. Resolution