State ex rel. Bradley v. Johnson

Decision Date04 March 1969
Docket NumberNo. 12790,12790
PartiesSTATE ex rel. Richard G. BRADLEY v. E. M. 'Pete' JOHNSON, Successor to G. Kemp Melton, Sheriff of Kanawha County, West Virginia.
CourtWest Virginia Supreme Court

Syllabus by the Court

1. A void judgment is a mere nullity and is of no valid force or effect.

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

3. A void judgment, being a nullity, may be attacked, collaterally or directly, at any time and in any court whenever any claim or right is asserted under such judgment.

Allan H. Masinter, Charleston, for relator.

C. Donald Robertson, Atty. Gen., Leo Catsonis, Asst. Atty. Gen., Charleston, for respondent.

HAYMOND, President:

In this original habeas corpus proceeding, instituted in this Court in December 1968, the petitioner, Richard G. Bradley, seeks a writ to compel the defendant, G. Kemp Melton, Sheriff of Kanawha County, West Virginia, to release him from his present confinement in the jail of Kanawha County, West Virginia, under a sentence of imprisonment in the penitentiary of this State for a period of not less than one year or more than ten years, with credit for the time served by the petitioner from November 29, 1967 imposed by the Intermediate Court of Kanawha County, West Virginia, by its final judgment of October 14, 1968.

The original defendant was G. Kemp Melton, Sheriff of Kanawha County, whose term as sheriff has expired, and this proceeding has been revived in the name of his successor, E. M. 'Pete' Johnson, the present sheriff, who is now the defendant in the place and stated of the former sheriff.

Upon the return day of the writ, January 8, 1969, this proceeding was heard upon the petition, the demurrer and the return of the defendant, who produced the body of the petitioner in court, and upon the briefs and oral arguments of the attorneys for the respective parties and was submitted for decision.

The material facts are not disputed. The petitioner was indicted for the crime of grand larceny by the grand jury of the Intermediate Court of Kanawha County at its September 1967 term and upon the trial of the indictment the jury returned a verdict which found the defendant guilty of the offense charged against him. The court overruled the motion of the defendant to set aside the verdict and grant him a new trial and on November 29, 1967 sentenced him to confinement in the penitentiary of this State for an indeterminate term of not less than one year or more than ten years with credit for the time spent by him in the county jail.

On April 24, 1968, the petitioner instituted a habeas corpus proceeding in the Circuit Court of Kanawha County, seeking his release on the ground that he had been denied effective assistance of counsel and because of the failure of the petitioner to obtain a transcript of the record of his trial to enable him to apply for a writ of error to the final judgment sentencing him to confinement in the penitentiary. At a hearing of the proceeding on May 27, 1968, the circuit court found that the petitioner had been denied his right to apply for a writ of error and by final judgment rendered August 14, 1968, discharged the petitioner from custody but suspended the execution of the judgment for a period of sixty days to enable the State to make proper disposition of the case in a 'constitutionally permissible' manner.

Within the sixty day period the petitioner was brought before the Intermediate Court of Kanawha County and upon motion of the State that court on October 14, 1968, set aside the sentence imposed on November 29, 1967 and resentenced the petitioner to imprisonment for a term of not less than one year or more than ten years with credit for the time served from November 29, 1967. In so sentencing the petitioner the intermediate court did not act pursuant to the provisions of Article 4A, Chapter 53, Code, 1931, as amended, for the reason that no proceeding under that statute was then pending in that court. After imposing the foregoing sentence that court granted a stay of execution for thirty days to enable the petitioner to perfect an appeal and appointed counsel to represent him on such appeal but no appeal was applied for by the petitioner.

The petitioner contends that inasmuch as the judgment of the intermediate court of November 29, 1967, which sentenced him to confinement in the penitentiary of this State for an indeterminate term of not less than one year or more than ten years, with credit spent by him in the county jail, was valid and regular on its face, and inasmuch as such judgment was not reversed, set aside, or modified during the term of court at which it was rendered and before the adjournment of that term, the intermediate court was without jurisdiction to vacate and set aside its judgment of November 29, 1967 and to resentence the petitioner to confinement in the penitentiary of this State for an indeterminate term of not less than one year or more than ten years with credit for the specified time served by the petitioner.

On the contrary the defendant asserts that by virtue of the provisions of Section 7(c), Article 4A, Chapter 53, Code, 1931, as amended, enacted by the Legislature January 25, 1967, effective from passage, the intermediate court had the power and authority to enter an appropriate order with respect to the conviction or sentence of the petitioner in the former criminal proceeding, to vacate and set aside the judgment of November 29, 1967, and to resentence the petitioner by its final judgment of October 14, 1968.

There is no merit in the contention of the petitioner that the final judgment of November 29, 1967 could not be vacated and set aside and a subsequent judgment entered by the intermediate court on October 14, 1968 which resentenced the petitioner to confinement in the penitentiary for an indeterminate term of not less than one year or more than ten years. It is true that before the adoption of the Rules of Civil Procedure, effective July 1, 1960, which do not, of course, apply to criminal proceedings, or to the extraordinary proceedings of habeas corpus, mandamus and prohibition, and prior to the enactment in January 1967 of Article 4A, Chapter 53, Code, 1931, as amended, this Court had held in many decisions that after the expiration of the term of court at which a final judgment adjudicating the matters involved and determining the rights of the parties in a suit or an action was entered, the court which entered such judgment is without authority, unless authorized by statute, to modify or vacate its...

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21 cases
  • State v. Eden
    • United States
    • West Virginia Supreme Court
    • 10 July 1979
    ...a court imposing a subsequent sentence may impose any penalty provided by law, including a more severe one. State ex rel. Bradley v. Johnson, 152 W.Va. 655, 166 S.E.2d 137 (1969); State ex rel. Boner v. Boles, 148 W.Va. 802, 137 S.E.2d 418 (1964). We note that when these cases were decided,......
  • State ex rel. Moats v. Janco, 12979
    • United States
    • West Virginia Supreme Court
    • 16 March 1971
    ...directly, at any time and in any court whenever any claim or right is asserted under such judgment.' Point 3, syllabus, State ex rel. Bradley v. Johnson, 152 W.Va. 655. (166 S.E.2d Thomas C. Cady, Morgantown, for appellant. Chauncey H. Browning, Jr., Atty. Gen., George E. Lantz, Deputy Atty......
  • Marano v. Holland
    • United States
    • West Virginia Supreme Court
    • 1 February 1988
    ...S.Ct. 1587, 12 L.Ed.2d 448 (1964); State ex rel. Johnson v. McKenzie, 159 W.Va. 795, 226 S.E.2d 721 (1976); State ex rel. Bradley v. Johnson, 152 W.Va. 655, 166 S.E.2d 137 (1969); State ex rel. Tune v. Thompson, 151 W.Va. 282, 151 S.E.2d 732 A court may as an incident to habeas relief manda......
  • State v. Varlas
    • United States
    • West Virginia Supreme Court
    • 16 June 2020
    ...sentence on a defendant who was convicted on retrial of the same offense after an appeal. See , e.g. , Syl. pt. 2, State ex rel. Bradley v. Johnson , 152 W. Va. 655, 166 S.E.2d 137 (1969), overruled by State v. Eden , 163 W. Va. 370, 256 S.E.2d 868 (1979) ("A void sentence is in law no sent......
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