Albright, Justice, dissenting:

        
        I respectfully dissent from the majority position because I firmly believe that a writ of prohibition should have been granted in this case. In my view, two issues of constitutional proportion deserved full exploration which cannot be found in the majority opinion. The first of these is the interplay of State v. Nichols, 208 W.Va. 432, 541 S.E.2d 310 (1999), on the fundamental fairness we have always required in recidivist proceedings. The second is the decision in State v. Williams, 196 W.Va. 639, 474 S.E.2d 569 (1996), permitting the use in recidivist proceedings of offenses which are felonies solely by reason of status elements such as we addressed in State v. Nichols.

I. The Interplay of State v. Nichols, Fundamental Fairness and Recidivist Proceedings
        Nichols allows a defendant charged with an offense which is enhanced by prior convictions of like offenses to elect to admit before trial the prior convictions, called “status elements” of the enhanced offense, in order to avoid the possibility that a jury will be swayed to convict a defendant of the charged offense because of the prior convictions.

        In the case before us, the petitioner was charged with third offense driving under the influence (hereinafter “DUI”) and third offense driving on a license suspended for DUI. Taking advantage of Nichols, the petitioner admitted the prior convictions at a hearing held by the circuit court before trial. On the day set for trial of the charged offense, the petitioner pled guilty to the charged felony offenses as well, thus subjecting himself to two sentences enhanced by his prior convictions. Subsequent to the petitioner's guilty plea, the State filed an information against the petitioner, seeking to further enhance his sentence under West Virginia Code §§ 61-11-18 and 19 (also referred to hereinafter as “recidivist statute”). Under the information, the petitioner would be liable to imprisonment for life unless sooner paroled.

        The majority found that the information filed under the recidivist statute constituted timely notice to the petitioner of the State's intent to seek a life term of imprisonment and did not offend Rule 11 of the Rules of Criminal Procedure regarding the punishment information required to be given to a defendant before accepting his or her guilty plea.

        However, the majority failed to seriously examine the issue of adequate notice in light of our 1999 decision in Nichols and our holdings in other recidivist cases that a judge about to hear a recidivist information is required to “duly caution” a defendant regarding the penalties to which any admissions may expose a defendant. W.Va. Code § 61-11-19 (1943) (Repl. Vol. 2000).

        The petitioner argued that the State's delay in filing the recidivist information did not meet the immediacy requirement set forth in West Virginia Code § 61-11-19.   (See footnote 1)  In finding that the statutory prescription for filing the information was satisfied, the majority said that “[t]o hold otherwise would risk a defendant being able to avoid imposition of a recidivist sentence if the State is unaware at the time of conviction of any predicate offenses.” State ex rel. Appleby v. Recht, No. 30737, ___ W.Va. ___, ___ S.E.2d ___ (December 4, 2002). Of course, given the fact that the enhancing crimes set forth in the information to garner a life sentence in this case are, with one exception, exactly the same offenses relied upon in the indictment to raise the charged offenses to a felony, and all such charges were in this case known fully to the prosecutor when the underlying indictment was returned, the reason stated by the majority is mere piffle.

        There is no justifiable reason why a prosecutor, having drawn an indictment stating certain prior convictions relied upon to raise the charged offenses to a felony should be permitted to stand silent on the State's intent to seek even further enhancement by way of a recidivist information, when a defendant is about to completely “cook his own goose” by making admissions under Nichols or in a Rule 11 guilty plea hearing that virtually guarantee punishment enhanced twice. Certainly, the trial court's statement to the petitioner regarding possible punishment incident to his Rule 11 hearing prior to pleading guilty was totally inaccurate in light of the prosecutor's later pursuit of a recidivist information.

        Perhaps more to the point is that this State has long recognized that a defendant is entitled, as a matter of fundamental fairness, to be “duly cautioned” before making admissions that may enhance a sentence by reason of recidivism.   (See footnote 2)  In its rush to uphold the result below in this case, the majority did not consider the due process implications of the Nichols procedure upon a subsequent and then unannounced intent to seek a life sentence under the recidivist statute. See Syl. Pt. 7, Ex parte Watson, 82 W.Va. 201, 95 S.E.648 (1918) (when interpreting a statute the presumption is that the Legislature had a purpose in the use of every word, phrase and clause found in a statute and intended the terms so used to be effective). Pursuant to West Virginia Code § 61-11-19, the subject of a recidivist information must be “duly cautioned” by the trial court before that person acknowledges in open court that he or she is the same person convicted of and sentenced for the offenses listed in the information. Although this Court has not adopted a rigid definition of the term “duly cautioned,” we have recognized that, being jurisdictional, it is a mandatory statutory requirement placed on the trial court which serves to satisfy principles of fundamental fairness in a recidivist proceeding. See State ex rel. Combs v. Boles, 151 W.Va. 194, 201, 151 S.E.2d 115, 120 (1966) (the duly cautioned provision of the recidivist statute has been fulfilled when the requirements of fundamental fairness, affording the defendant due process, have been satisfied). The reasons for affording due process protections in a recidivist proceeding were summarized in State v. Vance, 164 W.Va. 216, 262 S.E.2d 423 (1980), in the following way:

            A recidivist proceeding is not simply a sentencing hearing, but a proceeding whereby a new criminal status, that of being an habitual criminal, is determined. . . . If an individual is successfully prosecuted as an habitual criminal, a greater penalty than that attaching to the underlying crime is imposed. For these reasons, courts have required substantial due process protection in recidivist proceedings.

Id. at 225, 262 S.E.2d at 429 (citations omitted).

        Given the heightened due process protections which are implicated by recidivist proceedings, it is obvious that unless those protections are extended to admissions given under Nichols, their subsequent employment in the actual recidivist proceeding will be mere sham justice, devoid of any meaning whatever. Fundamental fairness requires that the State inform the trial court of its intent to file a recidivist information before admissions are made in a Nichols hearing whenever the State intends to use in a recidivist proceeding any prior convictions which are status elements in the charged offense in order to preserve any semblance of the defendant's due process rights to be “duly cautioned.”   (See footnote 3) 

         I am authorized to state that Justice Starcher joins in this separate opinion .