Jett v. Leverette
| Decision Date | 19 September 1978 |
| Docket Number | No. 14118,14118 |
| Citation | 247 S.E.2d 469,162 W.Va. 140 |
| Court | West Virginia Supreme Court |
| Parties | Danny Bruce JETT v. Bobby LEVERETTE, Superintendent, West Virginia Penitentiary. |
Syllabus by the Court
1. In West Virginia there are fundamental statutory differences between probation and parole in the relationship they bear to the underlying criminal sentence. The term of probation has no correlation to the underlying criminal sentence, while parole is directly tied to it. In effect, there is a probation sentence which operates independently of the criminal sentence.
2. The separation of the probation term from the underlying criminal sentence, coupled with the significant statutory differences between probation and parole, warrants the finding that our State's Double Jeopardy Clause is not violated by the failure to credit the time spent on probation upon its revocation.
Terence M. Gurley, Schrader, Stamp & Recht, Wheeling, for relator.
Chauncey H. Browning, Jr., Atty. Gen., William D. Highland, Asst. Atty. Gen., Charleston, for respondent.
In this original habeas corpus proceeding the relator, Danny Bruce Jett, challenges the denial of credit on his underlying sentence for the time he spent on probation before its revocation. He contends the Double Jeopardy Clause, Article III, Section 5 of the West Virginia Constitution, requires that he be given credit for such time.
Heavy, if not total, reliance is placed on Conner v. Griffith, W.Va., 238 S.E.2d 529 (1977). There, we held our Double Jeopardy Clause requires credit on the underlying sentence for time spent on parole where there is a revocation of parole. We decline to apply Conner to probation. 1
Despite the fact that there is a certain amount of similarity between parole and probation, as noted in Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973); Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972); and Louk v. Haynes, W.Va., 223 S.E.2d 780 (1976), they are by no means totally congruent. There can be no doubt both arise from an enlightened legislative desire to ameliorate the common law rule which precluded courts from withholding or suspending sentence except in certain limited instances attendant to an appeal. Ex parte United States, 242 U.S. 27, 37 S.Ct. 72, 61 L.Ed. 129 (1916); State ex rel. Winter v. MacQueen, W.Va., 239 S.E.2d 660, 662-663 (1977) (concurring opinion).
It may also be readily admitted from a procedural due process standpoint that both are surrounded with many of the same procedural protections upon their revocation. Gagnon v. Scarpelli, supra; Morrissey v. Brewer, supra; Louk v. Haynes, supra.
Although it is true that both probation and parole serve a rehabilitative goal, there are distinctions between the two approaches. 2 Parole is made available only after the convicted defendant has undergone imprisonment and demonstrated, through his good conduct under confinement, a rehabilitative trend. Parole carries with it an initial period of confinement. This is generally absent from probation. 3
Parole is basically a legislatively created system granting power to the executive branch, normally through an administrative board of parole, to grant conditional release to persons incarcerated. 4 Probation arises from the legislative designation of power to the judiciary to suspend the imposition of sentence and place the individual in conditional liberty. Roberts v. United States, 320 U.S. 264, 64 S.Ct. 113, 88 L.Ed. 41 (1943).
Probation conditions have proved, furthermore, more amenable to judicial review than parole conditions. See, e. g., Douglas v. Buder, 412 U.S. 430, 93 S.Ct. 2199, 37 L.Ed.2d 52 (1973); In re Bushman, 1 Cal.3d 767, 83 Cal.Rptr. 375, 463 P.2d 727 (1970); Bienz v. State, 343 So.2d 913 (Fla.App.1977); Inman v. State, 124 Ga.App. 190, 183 S.E.2d 413 (1971); State v. Oyler, 92 Idaho 43, 436 P.2d 709 (1968); People v. Brown, 133 Ill.App.2d 861, 272 N.E.2d 252 (1971); Dulin v. State, 346 N.E.2d 746 (Ind.App.1976); People v. Higgins, 22 Mich.App. 479, 177 N.W.2d 716 (1970); State ex rel. Halverson v. Young, 278 Minn. 381, 154 N.W.2d 699 (1967); People v. Mandell, 50 A.D.2d 907, 377 N.Y.S.2d 563 (1975); Louk v. Haynes, supra.
This may be accounted for by the fact that probation is a judicial act subject to judicial review. As this Court stated in Louk v. Haynes, supra : "Any condition of probation, however, which is imposed in the discretion of the trial court must be reasonable." (W.Va., 223 S.E.2d at 788) Parole is an executive function and this traditionally may limit a review of parole conditions to those that violate some fundamental or constitutional right. See, e. g., Arciniega v. Freeman, 404 U.S. 4, 92 S.Ct. 22, 30 L.Ed.2d 126 (1971); Hyland v. Procunier, 311 F.Supp. 749 (N.D.Cal.1970).
In West Virginia, as in other states, probation differs from parole in that the judge is authorized to tailor the probation conditions to meet the particular needs of the individual case, 5 while parole conditions are generally uniformly set by the parole board for all parolees. 6 The opportunity for less restrictive conditions is therefore more available in probation than parole.
Moreover, under our probation statute a maximum term of five years is set as the outer limit for probation time. 7 This probation term has no direct relationship to the amount of time required on the underlying criminal sentence. Furthermore, a judge can set probation for a shorter term but when either the statutory maximum or the shorter term has been served, the court no longer has jurisdiction to revoke probation. This is true even though the violation may have occurred during the probation term and regardless of the length of the underlying criminal sentence. State v. Reel, 152 W.Va. 646, 165 S.E.2d 813 (1969); State ex rel. Render v. Wood, 152 W.Va. 484, 165 S.E.2d 102 (1968), Overruled on other grounds, Louk v. Haynes, supra, 223 S.E.2d at 787; State ex rel. Strickland v. Melton, 152 W.Va. 500, 165 S.E.2d 90 (1968).
Parole is different in that it operates in conjunction with the underlying criminal sentence. 8 No separate period of parole is specified by the statute and in this sense the parolee is serving out the remainder of his criminal sentence. 9
A further distinction exists between probation and parole in regard to their relationship to the underlying criminal sentence. Under our probation statute, the court may either impose sentence and then suspend its execution and place the defendant on probation, or it may initially suspend imposition of the sentence and place the defendant on probation. 10 Obviously, in this latter situation, where there has been no imposition of an underlying criminal sentence, the probation term is completely independent.
This Court has held that, where there is no imposition of sentence initially and the defendant has been placed on probation, the court is without jurisdiction to impose a criminal sentence once the probation term is completed, even though the conditions of probation have been violated during the probation term. State ex rel. Render v. Wood, supra; State ex rel. Strickland v. Melton, supra.
Further statutory differences exist between probation and parole in regard to eligibility. Probation is not available for a person who has a prior felony conviction within five years of his current felony conviction. Nor is probation available if the person is convicted of or pleads guilty to a felony for which the maximum penalty is life imprisonment. 11 No such parallel restrictions are imposed on eligibility for parole. 12
Additionally, the probation and parole statutes make a distinction as to re-eligibility. On a violation of probation, if it is the commission of a felony, the probation must be revoked; otherwise, the judge may continue the probation term. There is no statutory right to retain eligibility for probation after its revocation. 13 In the case of a parole revocation there exists the possibility of further eligibility for parole unless the parolee has committed certain crimes set out in W.Va.Code, 62-12-18, while on parole, in which event "he shall be ineligible for further parole." W.Va.Code, 62-12-19.
Conceptually, these statutory differences suggest a legislative intention to accord more flexibility in parole revocation, which may be accounted for by the fact that in parole there is the underlying criminal sentence which measures the length of control over the parolee. By contrast, the probation term is independent of the underlying criminal sentence.
Thus in our jurisdiction there are fundamental statutory differences between probation and parole in the relationship they bear to the underlying criminal sentence. The term of probation has no correlation to the underlying criminal sentence, while parole is directly tied to it. In effect, there is a probation sentence which operates independently of the criminal sentence.
Other courts have recognized that there is a difference between the probation term and the underlying criminal sentence. This has led to the general rule that the fact the probation term exceeds the maximum term for the underlying crime does not render the probation term invalid. United States v. Lancer, 508 F.2d 719, 724 n. 18 (3rd Cir. 1975); Driver v. United States, 232 F.2d 418, 421-422 (4th Cir. 1956); Mitchem v. United States, 193 F.2d 55 (5th Cir. 1951); Hollandsworth v. United States, 34 F.2d 423, 426-427 (4th Cir. 1929); United States v. Sumpter, 287 F.Supp. 608, 610 (S.D.Tex.1968); Tiedeman v. State, 576 P.2d 114 (Alaska 1978); Accord, People v. Tadla, 110 Ill.App.2d 119, 124, 249 N.E.2d 155, 158 (1969).
In United States v. Shead, 568 F.2d 678 (10th Cir. 1978), a probationer sought to attack the denial of credit for the time he had spent on probation, after it had been revoked, on the basis of the Due Process and Equal Protection...
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