State ex rel. Boner v. Boles, No. 12348

• Court: Supreme Court of West Virginia
• Citation: 137 S.E.2d 418,148 W.Va. 802
• Docket Number: No. 12348
• Decision Date: 17 July 1964
• Parties: STATE et rel. Benjamin BONER v. Otto C. BOLES, Warden, West Virginia Penitentiary.

Page 418

137 S.E.2d 418 148 W.Va. 802 STATE et rel. Benjamin BONER
v.
Otto C. BOLES, Warden, West Virginia Penitentiary. No. 12348. Supreme Court of Appeals of West Virginia. Submitted July 7, 1964.
Decided July 17, 1964.

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Syllabus by the Court

1. 'The general rule supported by the weight of authority is that a judgment rendered by a court in a criminal case must conform strictly to the statute which prescribes the punishment to be imposed and that any variation from its provisions, either in the character or the extent of the punishment inflicted, renders the judgment absolutely void.' Point 3, syllabus, State ex rel. Nicholson v. Boles, W.Va. [134 S.E.2d 576].

2. When a sentence imposed in a criminal case is void because at variance with the requirements of the statute and a subsequent valid sentence which conforms to the statutory requirements is imposed such valid sentence may be in excess of and provide greater punishment than that provided by the void sentence.

3. A void sentence is in law no sentence at all and the court upon a valid sentence may impose any penalty provided by law.

[148 W.Va. 803] 4. A sentence at variance with statutory requirements is void and may be superseded by a new sentence in conformity with statutory provisions, and such new sentence may be rendered after such prior sentence has been partially served or after the term of court has expired even though such new sentence imposes a greater punishment.

5. When the execution of a valid sentence has been commenced, the trial court can not impose a new or different sentence increasing the punishment even at the same term or session of the court at which the original sentence was pronounced; and any attempt to do so is of no effect and the original sentence remains in force.

6. When a sentence imposed in a criminal case is void, either because of lack of jurisdiction or because it was not warranted by statute for the particular offense, the court may set aside such void sentence and pronounce a valid sentence even though the execution of the void sentence has commenced, and without regard to the time when, or the term within which, such void sentence was imposed.

7. In a prosecution for a felony a judgment imposing an original sentence of imprisonment and a subsequent judgment resentencing the defendant to imprisonment after the imposition of a prior void judgment of imprisonment must be rendered while the defendant is personally present in court and any judgment of imprisonment rendered in such proceeding in the absence of the defendant is a void judgment.

8. A person imprisoned under a void sentence will be released from such imprisonment by a writ of habeas corpus.

Patrick C. Graney, Jr., Fayetteville, for relator.

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

[148 W.Va. 804] HAYMOND, President.

This is a habeas corpus proceeding within the original jurisdiction of this Court, instituted on June 22, 1964, by the petitioner, Benjamin Boner, in which he seeks a writ to require the defendant, Otto C. Boles, Warden of the West Virginia Penitentiary, to release him from his present confinement under sentence imposed by the Circuit Court of Fayette County, West Virginia, during its regular 1961 September Term of the court. Upon the petition this Court issued a writ returnable July 7, 1964, and appointed an attorney to represent the petitioner in this proceeding. On the day to which the writ was returnable this proceeding was submitted for decision upon the pleadings, consisting of the petition and its exhibits, the demurrer and the

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answer of the defendant and its exhibits, and upon the written briefs and the oral arguments of the attorneys in behalf of the respective parties.

In May 1961 two indictments, charging the felony of incest, were returned against the petitioner by a grand jury in Fayette County and the petitioner was incarcerated in the jail of that county on May 9, 1961. When arraigned before the circuit court at its 1961 September Term the petitioner entered a plea of guilty to each of the two indictments and requested the court to grant him probation. On October 27, 1961, the petitioner was brought before the court, his application for probation was denied, and he was sentenced to confinement in the penitentiary of this State for an indeterminate period of not less than one year or more than five years with credit for the period of his confinement in jail awaiting trial. On November 14, 1961, the petitioner was committed to the penitentiary under the sentence imposed on October 27, 1961, and at that time he began to serve such sentence.

Soon after his commitment to the penitentiary it was discovered that the sentence imposed upon the petitioner was improper in that it should have been for an indeterminate period of not less than five years or more than ten years, the penalty for the crime of incest prescribed by Section 12, [148 W.Va. 805] Article 8, Chapter 61, Code, 1931. When the improper sentence was called to the attention of the circuit court and while the petitioner was confined in the penitentiary under the prior sentence the circuit court, during the same term at which the original sentence was imposed, by order entered November 24, 1961, which contained the recital that the previous sentence 'was incorrect inasmuch as the defendant entered a plea of guilty to two charges of incest and should have been sentenced to an indeterminate period of not less than five years nor more than ten years', corrected the prior sentence and sentenced the petitioner to be confined in the penitentiary for an indeterminate period of not less than five years or more than ten years upon each indictment and provided that such sentences should run concurrently and that the defendant should be given credit for the period of his confinement in the Fayette County jail.

In support of his contention that he is entitled to the writ for which he prays, the petitioner asserts: (1) That the first sentence imposed by the circuit court of not less than one year or more than five years, though erroneous, is not void; (2) that as he had served a portion of the first sentence it may not be increased and that the increased sentence of not less than five years or more than ten years subsequently imposed by the court is void; and (3) that the subsequent sentence of not less than five years or more than ten years, having been imposed while the petitioner was not personally present, is for that reason void. According to the contention of the petitioner the sentence of not less than five years or more than ten years imposed upon him by the court under each indictment is void and for that reason it may be reached and its enforcement prevented by the writ which he seeks in this proceeding.

Though the decisions of the courts are conflicting as to whether a sentence for a particular offense which does not conform to that prescribed by the statute for such offense is voidable or void, and though such sentence has been held to be merely erroneous or voidable in some jurisdictions, the principle that such sentence is not merely erroneous or [148 W.Va. 806] voidable but is void and may be reached in a habeas corpus proceeding is well settled by the decisions of this Court. Decisions to that effect are State ex rel. Nicholson v. Boles, W.Va., 134 S.W.2d 576; State ex rel. Mundy v. Boles, W.Va., 137 S.E.2d 240; State ex rel. Facemyer v. Boles, W.Va., 137 S.E.2d 237; State ex rel. Chafin v. Bailey, 106 W.Va. 32, 144 S.E. 574; Mount v. Quinlan, 104 W.Va. 118, 139 S.E. 474; Ex Parte Barr, 79 W.Va. 681, 91 S.E.

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655; Ex Parte Page, 77 W.Va. 467, 87 S.E. 849.

Among the decisions of courts in other jurisdictions which consider a judgment rendered by a court in a criminal case which does not conform strictly to the statute which prescribes the punishment to be imposed and which varies from the provisions of the statute, either in the character or the extent of the punishment inflicted, to be void are Weems v. United States, 217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 793, 19 Ann.Cas. 705; In re Bonner, 151 U.S. 242, 14 S.Ct. 323, 38 L.Ed. 149; In re Graham, 138 U.S. 461, 11 S.Ct. 363, 34 L.Ed. 1051; In re Mills, 135 U.S. 263, 10 S.Ct. 762, 34 L.Ed. 107; Mathes v. United States, 9th cir., 254 F.2d 938; DeBenque v. United States, 66 App.D.C. 36, 85 F.2d 202, 106 A.L.R. 839, certiorari denied 298 U.S. 681, 56 S.Ct. 960, 80 L.Ed. 1402, rehearing denied, 299 U.S. 620, 57 S.Ct. 6, 81 L.Ed. 457; United States v. Bozza, 3d cir., 155 F.2d 592, affirmed in part and reversed in part on other grounds, 330 U.S. 160, 67 S.Ct. 645, 91 L.Ed. 818; Anderson v. Rives, 66 App.D.C. 174, 85 F.2d 673; Egan v. United States, 52 App.D.C. 384, 287 F. 958; Harman v. United States, 8 cir., 50 F. 921; Howard v. State, 28 Ariz. 433, 237 P. 203, 40 A.L.R. 1275; Ex Parte Gibson, 31 Cal. 619, 91 Am.Dec. 546; Richardson v. Hand, 182 Kan. 326, 320 P.2d 837; Lee Lim v. Davis, 75 Utah 245, 284 P. 323, 76 A.L.R. 460; Crutchfield v. Commonwealth, 187 Va. 291, 46 S.E.2d 340; Jessup v. Commonwealth, 185 Va. 610, 39 S.E.2d 638. See also 15 Am.Jur., Criminal Law, Sections 443 and 459; 24 C.J.S. Criminal Law § 1589. Some of the decisions in jurisdictions which hold that a sentence for an offense which does not conform strictly to the statute which prescribes the punishment to be imposed is erroneous or voidable[148 W.Va. 807] but not void are Simmons v. United States, 5th Cir., 89 F.2d 591, certiorari denied, 302 U.S. 700, 58 S.Ct. 19, 82 L.Ed. 540; People v. Conley, 27 Cal.App. 362, 150 P. 412; Hickman v. Fenton, 120 Neb. 66, 231 N.W. 510, 70 A.L.R. 819; Lyons v. Robinson, 293 N.Y. 191, 56 N.E.2d 546; State v. Ryan, 146 Wash. 114, 261 P. 775.

In the recent case of State ex rel. Nicholson v. Boles, W.Va., 134 S.E.2d 576, this Court held in point 3 of the syllabus that 'The general rule supported by the...