Peyton v. Christian

• Decision Date: 12 June 1967
• Citation: 208 Va. 105,155 S.E.2d 335
• Court: Virginia Supreme Court
• Parties: C. C. PEYTON, Superintendent of the Virginia State Penitentiary v. Jerry E. CHRISTIAN.

Page 335

155 S.E.2d 335

208 Va. 105

C. C. PEYTON, Superintendent of the Virginia State Penitentiary v. Jerry E. CHRISTIAN.

Supreme Court of Appeals of Virginia.

June 12, 1967.

Reno S. Harp, III, Asst. Atty. Gen., (Robert Y. Button, Atty. Gen., on brief), for plaintiff in error.

Frank A. S. Wright, Richmond, for defendant in error.

Before EGGLESTON, C.J., and SPRATLEY, BUCHANAN, SNEAD, I'ANSON, CARRICO and GORDON, JJ.

BUCHANAN, Justice.

Jerry E. Christian, petitioner, filed a petition for a writ of Habeas corpus ad subjiciendum in the Law and Equity Court of the City of Richmond on September 23, 1965, alleging that he was being illegally detained by C. C. Peyton, Superintendent of the Virginia State Penitentiary, respondent. He averred that on September 9, 1965, by an order of the Circuit Court of the City of Chesapeake, a sentence of four years in the penitentiary imposed on petitioner by the Circuit Court of Norfolk county on November 10, 1944, had been declared void, and that he was entitled to credit for part of the time served on the void sentence on a sentence of sixteen years imposed upon him on March 27, 1945, by the Hustings Court of the City of Portsmouth for robbery, which credit he said had been denied him.

Respondent filed a motion to dismiss on the ground that the petitioner ws not entitled to credit for any time served by the petitioner under the sentence declared void. By order of October 8, 1965, the court directed that the writ be issued returnable to October 19, 1965.

Upon the hearing of the matter it was stipulated that the petitioner's prison record, exhibited with respondent's motion, correctly set forth the facts and if petitioner started to serve the sentence of sixteen years imposed by the Hustings Court of the City of Portsmouth for robbery, as of the date of the entry of said judgment on March 27, 1945, then petitioner had fully served all sentences imposed upon him.

Upon consideration the court concluded that the petitioner started serving the sentence of March 27, 1945, on that day in accordance with § 53--207 of the Code,* and pursuant to the stipulation ordered that the respondent forthwith discharge petitioner from his custody. Respondent has appealed from that order, and petitioner was released on bail. Code § 8--607.

Subsequent to petitioner's sentence of four years by the Circuit Court of Norfolk county on November 10, 1944, and his sentence of sixteen years by the Hustings Court of the City of Portsmouth on March 27, 1945, he received various sentences for various crimes as listed in his prison record dated September 24, 1965, which stated that the petitioner was then serving a term of one year imposed by the Circuit Court of Augusta county on June 4, 1953, for housebreaking. The record further indicated that petitioner would complete the serving of all sentences against him on July 4, 1966.

We are not here concerned, however, with any of these sentences subsequent to the sentence of November 10, 1944, and the sentence of March 27, 1945, because of the stipulation set out in the order appealed from 'that if petitioner started to serve the sentence of sixteen years for robbery imposed by the Hustings Court of the City of Portsmouth as of the day of entry of said judgment on March 27, 1945, then petitioner has fully served all sentences imposed against him.'

The prison record shows that the petitioner was first convicted on November 10, 1944, and was sentenced to serve a term of four years in the penitentiary. His term therefore began on that day. Code § 53--207, supra.

After petitioner had begun to serve that sentence, he was, on March 27, 1945, convicted of robbery and sentenced to serve sixteen years in the penitentiary. Ordinarily he would have begun to serve that sentence at the expiration of his sentence of November 10, 1944. Code § 19.1--294; Smyth v. Midgett, 199 Va. 727, 101 S.E.2d 575; Grace v. Peyton, 207 Va. 688, 692--693, 152 S.E.2d 292, 295.

But the petitioner should not have been serving the 1944 sentence. That was a void sentence, so determined by the Circuit Court of the City of Chesapeake (formerly the Circuit Court of Norfolk county) by order entered September 9, 1965, which declared it 'void Ab initio.'

A void judgment is in legal effect no judgment. "By it no rights are divested. From it no rights can be obtained. * * *" Anthony v. Kasey, 83 Va. 338, 340, 5 S.E. 176, 177.

Petitioner cannot have, and does not here request, any credit on his March 27, 1945, sentence for the time he had then served on the void sentence of 1944. Smyth v. Midgett, supra, 199 Va. 727, 730, 101 S.E.2d 575, 578, and cases there cited. But at the date of his 1945 sentence, when he was being improperly held on a void sentence, there was no reason why the provision of § 53--207 should not be applied and the term of his confinement be computed from the date of that sentence, March 27, 1945. When so applied, then according to the stipulation petitioner has fully served all sentences imposed against him and is entitled to be discharged from custody.

Respondent argues that this conclusion is contrary to our holdings in Smyth v. Midgett, supra; Smyth v. Holland, 199...