State ex rel. Ashworth v. Boles, No. 12266

CourtSupreme Court of West Virginia
Writing for the CourtCAPLAN
Citation148 W.Va. 13,132 S.E.2d 634
PartiesSTATE ex rel. Lee Taylor ASHWORTH v. Otto C. BOLES, Warden, West Virginia Penitentiary.
Docket NumberNo. 12266
Decision Date08 October 1963

Page 634

132 S.E.2d 634
148 W.Va. 13
STATE ex rel. Lee Taylor ASHWORTH
v.
Otto C. BOLES, Warden, West Virginia Penitentiary.
No. 12266.
Supreme Court of Appeals of West Virginia.
Submitted Sept. 4, 1963.
Decided Oct. 8, 1963.

Syllabus by the Court

1. There is a strong presumption in favor of the regularity of court proceedings and the burden is on the person who alleges irregularity to show affirmatively that such irregularity existed.

2. Where it appears affirmatively from the record that the special judge below had not been elected at the time he pronounced sentence, such special judge was without jurisdiction to so act and any sentence imposed by him is void.

3. "One imprisoned in consequence of a sentence which is void may obtain his release from such imprisonment by a habeas corpus proceeding.' Point 3, Syllabus, State ex rel. Firestone v. Adams, 145 W.Va. 194 [113 S.E.2d 830]'. Point 3, Syllabus, State ex rel. Browning v. Boles [W.Va., 132 S.E.2d 505].

Andrew A. Raptis, Jr., Charleston, for relator.

C. Donald Robertson, Atty. Gen., George H. Mitchell, Asst. Atty. Gen., Charleston, for respondent.

Page 635

CAPLAN, Judge.

The relator, Lee Taylor Ashworth, a prisoner in the state penitentiary in Moundsville, invoked the original [148 W.Va. 14] jurisdiction of this Court by filing with it on July 3, 1963, his petition for a writ of habeas corpus. On July 30, 1963, a writ was issued by this Court commanding Otto C. Boles, respondent herein, to produce the body of the relator before this Court on September 4, 1963, and to show cause why he detains and restrains the relator of and from his liberty. Counsel was appointed to represent the relator in this proceeding. On September 4, 1963, this case was submitted for decision, briefs having been filed and arguments made on behalf of the parties hereto.

The petition alleges that on November 18, 1940, the relator was indicted in the Circuit Court of Lincoln County on a charge of burglary; that upon his plea of guilty to said indictment he was sentenced to life imprisonment in the penitentiary; that the sentence was imposed by a special judge on December 2, 1940; that said special judge was without jurisdiction to so sentence him because there was no order of record showing his election as special judge until December 27, 1940; and that he was without assistance of counsel.

This Court obtained from the office of the Clerk of the Circuit Court of Lincoln County certified copies of the indictments and orders pertaining to the trial and sentencing of the relator. It clearly appears that there were two indictments returned on the same day, one charging him with the crime of burglary as alleged in the petition and one charging burglary and three prior felony convictions.

The relator's claim that he was sentenced to life imprisonment on a plea of guilty to the burglary indictment is without merit. It is clearly shown in this case that a second indictment was returned on the same day, charging not only the burglary but three prior felony convictions under which, as the law was then written, he could have been sentenced to...

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22 practice notes
  • State ex. rel. Roger L. Bowers v. McBride, No. 101458
    • United States
    • Supreme Court of West Virginia
    • February 25, 2011
    ...147 S.E.2d 486 (1966); State ex rel. Massey v. Boles, 149 W. Va. 292, 140 S.E.2d.608 (1965); Syl. Pt. 1, State ex rel. Ashworth v. Boles, 148 W. Va. 13, 132 S.E.2d 634 (1963). 5. Due to this strong presumption of regularity, statutory law requires that a petition for writ of habeas corpus a......
  • Carl N. v. Ballard, No. 13-0569
    • United States
    • Supreme Court of West Virginia
    • April 25, 2014
    ...147 S.E.2d 486 (1966); State ex rel. Massey v. Boles, 149 W. Va. 292, 140 S.E.2d 608 (1965); Syl. Pt. 1, State ex rel. Ashworth v. Boles, 148 W. Va. 13, 132 S.E.2d 634 (1963). 5. Due to this strong presumption of regularity, statutory law requires that a petition for writ of habeas corpus a......
  • State ex rel. Smith v. Boles, No. 12485
    • United States
    • Supreme Court of West Virginia
    • January 12, 1966
    ...15 R.C.L., Judgements, Section 373; State ex rel. Massey v. Boles, Warden, 149 W.Va. 292, 140 S.E.2d 608; State ex rel. Ashworth v. Boles, 148 W.Va. 13, 132 S.E.2d 634; State ex rel. Powers v. Boles, 149 W.Va. 6, 138 S.E.2d This case is governed by the Massey case cited above in which the s......
  • Pyles v. Boles, No. 12280
    • United States
    • Supreme Court of West Virginia
    • April 15, 1964
    ...requirements for the entry of a valid judgment will be accorded prevailing force and effect. State ex rel. Ashworth v. Boles, W.Va., 132 S.E.2d 634; Bowles v. Mitchell, W.Va., 120 S.E.2d 697; Rollins v. Daraban, 145 W.Va. 178, 113 S.E.2d 369; State ex rel. Black v. Pennybacker, 144 W.Va. 61......
  • Request a trial to view additional results
22 cases
  • State ex. rel. Roger L. Bowers v. McBride, No. 101458
    • United States
    • Supreme Court of West Virginia
    • February 25, 2011
    ...147 S.E.2d 486 (1966); State ex rel. Massey v. Boles, 149 W. Va. 292, 140 S.E.2d.608 (1965); Syl. Pt. 1, State ex rel. Ashworth v. Boles, 148 W. Va. 13, 132 S.E.2d 634 (1963). 5. Due to this strong presumption of regularity, statutory law requires that a petition for writ of habeas corpus a......
  • Carl N. v. Ballard, No. 13-0569
    • United States
    • Supreme Court of West Virginia
    • April 25, 2014
    ...147 S.E.2d 486 (1966); State ex rel. Massey v. Boles, 149 W. Va. 292, 140 S.E.2d 608 (1965); Syl. Pt. 1, State ex rel. Ashworth v. Boles, 148 W. Va. 13, 132 S.E.2d 634 (1963). 5. Due to this strong presumption of regularity, statutory law requires that a petition for writ of habeas corpus a......
  • State ex rel. Smith v. Boles, No. 12485
    • United States
    • Supreme Court of West Virginia
    • January 12, 1966
    ...15 R.C.L., Judgements, Section 373; State ex rel. Massey v. Boles, Warden, 149 W.Va. 292, 140 S.E.2d 608; State ex rel. Ashworth v. Boles, 148 W.Va. 13, 132 S.E.2d 634; State ex rel. Powers v. Boles, 149 W.Va. 6, 138 S.E.2d This case is governed by the Massey case cited above in which the s......
  • Pyles v. Boles, No. 12280
    • United States
    • Supreme Court of West Virginia
    • April 15, 1964
    ...requirements for the entry of a valid judgment will be accorded prevailing force and effect. State ex rel. Ashworth v. Boles, W.Va., 132 S.E.2d 634; Bowles v. Mitchell, W.Va., 120 S.E.2d 697; Rollins v. Daraban, 145 W.Va. 178, 113 S.E.2d 369; State ex rel. Black v. Pennybacker, 144 W.Va. 61......
  • Request a trial to view additional results

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