Smyth v. Midgett, 4746

Decision Date20 January 1958
Docket NumberNo. 4746,4746
Citation101 S.E.2d 575,199 Va. 727
CourtVirginia Supreme Court
PartiesW. FRANK SMYTH, JR., SUPERINTENDENT, &C. v. WILLIAM G. MIDGETT. Record

Thomas M. Miller, Assistant Attorney General (Kenneth C. Patty, Attorney General, on brief), for the plaintiff in error.

Frederick T. Gray (T. Brooke Howard; Williams, Mullen, Pollard & Rogers, on brief), for the defendant in error.

JUDGE: HUDGINS

HUDGINS, C.J., delivered the opinion of the court.

On July 13, 1942, William G. Midgett, hereinafter designated petitioner, was convicted in the Circuit Court of Princess Anne County on eight indictments, six charged him with grand larceny and two with housebreaking. He was sentenced on each indictment to two years' confinement in the penitentiary, the sentences to run consecutively, making his total period of confinement 16 years.

On March 20, 1956, petitioner filed a petition in the lower court for a writ of habeas corpus against W. Frank Smyth, Jr., Superintendent of the State Penitentiary, hereinafter designated respondent. It was alleged in the petition that the eight judgments of conviction, pronounced against petitioner by the Circuit Court of Princess Anne County, were invalid because in each of the eight trials he was denied rights guaranteed him by the Fifth and Fourteenth Amendments to the Federal Constitution.

The lower court entered an order requiring respondent to show cause why a writ of habeas corpus should not be entered. Respondent answered the rule to show cause and after a writ of habeas corpus had been issued, filed an additional answer, together with certain exhibits, denying that any of the eight convictions pronounced against petitioner by the Circuit Court of Princess Anne County was void. The exhibits included the following report of Curtis R. Mann, Director of the Bureau of Records and Criminal Identification:

'Re: William C. Midgett, Va. Pen. #46994

'The six (6) Grand Larceny charges, the two (2) Housebreaking charges, and the three (3) Escape charges expired or will expire in the following manner:

                '(1)   Grand Larceny  --2 yrs.   Expired:    1-19-44
                '(2)    ' '              ' '         '       11-9-45
                '(3)    ' '              ' '         '       5-25-55
                       '(At large on escape 7 yrs.--6 mos.--10 das.)
                '(4)   Grand Larceny  --2 yrs.    Expires     9-2-56
                '(5)    ' '              ' '         '        1-2-57
                '(6)    ' '              ' '         '        5-2-58
                '(7)   Housebreaking  --2 yrs.       '        9-2-50
                '(8)    ' '              ' '         '        1-2-60 (sic)
                '(9)   Escape          --1 yr.       '        9-2-60
                '(10)   '                ' '         '        5-2-61
                '(11)   '                ' '         '        1-2-62'
                

The lower court heard the evidence introduced by the respective parties on the issues raised by the pleadings and entered an order releasing petitioner from custody. From that order respondent obtained this writ of error.

At the threshold of the case we are confronted with petitioner's motion to dismiss the writ of error on the ground that respondent did not have the evidence introduced at the hearing transcribed and made a part of the record before this Court.

When the evidence introduced in the lower court is not made a part of the record on appeal, all questions of fact resolved by that court must be accepted as conclusive. But this Court will consider any question of law properly raised as to matters appearing on the face of the record. In this case the record consists of the pleadings, exhibits filed therewith and the orders of the lower court, which record is sufficient for the Court to pass on the questions of law raised by respondent. The motion to dismiss is overruled.

The court stated in its order that, '* * * it appearing from the exhibit filed with the petition [answer] that the petitioner has been three times convicted of escape and sentenced to a term of one year in the Virginia State Penitentiary for each such offense and it further appearing from said exhibit that subsequent to the date of each such conviction the petitioner has served at least one year's confinement in said institution allegedly upon a conviction declared void by this order, the Court doth ADJUDGE, ORDER and DECREE that the several trials had on July 13, 1942, in the Circuit Court of Princess Anne County are null and void and that the petitioner has served sufficient time to satisfy each of the said escape convictions and should be credited with time served subsequent to such convictions and the respondent is therefore ordered to release the petitioner from custody; * * *.'

The legal question presented is whether a court has jurisdiction in a habeas corpus proceeding to give a prisoner credit on valid sentences, which he had not begun to serve when the petition was filed, for time he had served on void sentences.

Habeas corpus is a writ of inquiry granted to determine whether a person is illegally detained. Code, § 8-596. It can not be used to perform the function of an appeal or writ of error, to review errors, or to modify or revise a judgment of conviction pronounced by a court of competent jurisdiction. It can not be used to secure a judicial determination of any question which, even if determined in the prisoner's favor, could not affect the lawfulness of his immediate custody and detention. In other words, a prisoner is entitled to immediate release by habeas corpus if he is presently restrained of his liberty without warrant of law. Buchanan v. Buchanan, 170 Va. 458, 197 S.E. 426; 9 Michie's Jur., Habeas Corpus, § 14, p. 316 and cases there cited; 25 Am. Jur., Habeas Corpus, § 55, p. 184; 10 Va. & W. Va. Digest, Habeas Corpus, § 1, p. 475.

A person convicted on a criminal charge is entitled to have deducted from his sentence of confinement all time actually spent by him in jail or in the penitentiary awaiting trial, or pending an appeal of that conviction. 'No such credit, however, shall be given to any person who shall break jail or escape.' Code, § 53-208; Hale v. Commonwealth, 137 Va. 774, 119 S.E. 49. See Stonebreaker v. Smyth, 187 Va. 250, 46 S.E.2d 406.

A court does not have jurisdiction to determine the validity of a sentence under which the prisoner is not being detained. It follows that where a prisoner is being detained under a valid sentence he is not entitled to credit for time served on a void sentence fully served before the proceeding for writ of habeas corpus is instituted. McDorman v. Smyth, 187 Va. 522, 47 S.E.2d 441; Smyth v. Holland, 199 Va. 92, 97 S.E.2d 745. However, he may attack in a habeas corpus proceeding the validity of a sentence he has completely served when he is detained under Code, § 53-296 as a repeater. And if he is being detained under a void sentence, he is entitled to credit for the time served under such sentence on a valid sentence, or sentences, entered against him prior to the time he began serving the void sentence. Fitzgerald v. Smyth, 194 Va. 681, 74 S.E.2d 810; McDorman v. Smyth, 188 Va. 474, 50 S.E.2d 423.

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28 cases
  • E.C. v. Virginia Dep't of Juvenile Justice, Record No. 110523.
    • United States
    • Supreme Court of Virginia
    • March 2, 2012
    ...because the petitioner had already fully served the challenged sentences at the time the petition was filed, citing Smyth v. Midgett, 199 Va. 727, 101 S.E.2d 575 (1958) and Smyth v. Holland, 199 Va. 92, 97 S.E.2d 745 (1957). This Court dismissed the appeal, however, stating that because the......
  • Fitzgerald v. Bass, 0511-85
    • United States
    • Court of Appeals of Virginia
    • July 7, 1987
    ...if determined in the prisoner's favor, could not affect the lawfulness of his immediate custody and detention." Smyth v. Midgett, 199 Va. 727, 730, 101 S.E.2d 575, 578 (1958). There is nothing in the record, or in Fitzgerald's allegations, to indicate that the prosecutor took advantage of p......
  • Fitzgerald v. Bass, 0511-85
    • United States
    • Court of Appeals of Virginia
    • March 15, 1988
    ...if determined in the prisoner's favor, could not affect the lawfulness of his immediate custody and detention." Smyth v. Midgett, 199 Va. 727, 730, 101 S.E.2d 575, 578 (1958). There is nothing in the record, or in Fitzgerald's allegations, to indicate that the prosecutor took advantage of p......
  • West v. Director of the Department of Corrections, Record No. 052263.
    • United States
    • Supreme Court of Virginia
    • January 12, 2007
    ...Wilkins, 255 Va. at 420, 498 S.E.2d at 696; McClenny v. Murray, 246 Va. 132, 134, 431 S.E.2d 330, 331 (1993); Smyth v. Midgett, 199 Va. 727, 730, 101 S.E.2d 575, 578 (1958). Accordingly, for these reasons, we will grant a writ of habeas corpus with regard to West's common law involuntary ma......
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