State ex rel. Hanley v. Hey
| Decision Date | 22 May 1979 |
| Docket Number | No. 14352,14352 |
| Citation | 163 W.Va. 103,255 S.E.2d 354 |
| Parties | STATE ex rel. Cletus B. HANLEY, Prosecuting Attorney v. John HEY, Judge, Circuit Court of Kanawha County. |
| Court | West Virginia Supreme Court |
Syllabus by the Court
1. Under the terms of W.Va.Code § 62-12-10, a circuit court exceeds its legitimate authority when it suspends the execution of sentence and releases on probation an offender who has been adjudged in a probation revocation proceeding to have committed a felony while on probation.
2. "Prohibition will lie to prohibit a judge from exceeding his legitimate powers." Syl. pt. 2, State ex rel. Winters v. MacQueen, W.Va., 239 S.E.2d 660 (1977).
Chauncey H. Browning, Jr., Atty. Gen., Richard E. Hardison, Deputy Atty. Gen., Frances W. McCoy, Asst. Atty. Gen., Charleston, for relator.
Marvin W. Masters, Charleston, for respondent.
We granted a rule to show cause in this prohibition proceeding to consider the narrow and limited question of whether a circuit court has the power to continue the probation of an individual who is adjudged in a final revocation hearing to have violated a condition of his probation by committing a felony. We answer the question in the negative and say that the respondent trial court exceeded its legitimate powers by granting probation. We grant the writ.
In September of 1977, Gregory Dale O'Scha plead guilty to a felony charge and was placed on probation for a period of two years by the Circuit Court of Kanawha County. Subsequently, the probation authorities sought to revoke his probation. The probationer was given written notice of the charge against him in both the preliminary and final revocation proceedings, namely, that he had committed a breaking and entering or entry without breaking of a certain store house located in Kanawha County in May of 1978. Following the final revocation hearing, the trial court entered an order revoking probation based on a plea of guilty to the charge against him.
Thereafter the probationer was sentenced on his original 1977 felony conviction. Counsel for the probationer filed a timely motion for reconsideration of the sentence, and after a hearing on the motion, the trial court suspended the sentence previously imposed upon a finding that "the character of the offender and the circumstances of the case now indicate that he is not likely again to commit crime, and that the public good does not require that he be further imprisoned in the West Virginia State Penitentiary. . . ."
I.
Article 12 of Chapter 62 of the West Virginia Code contains the law of this State regulating the probation of criminal offenders. Section 1 of that article provides that "(a)ny circuit court of this State shall have authority As provided in this article to place on probation any person convicted of a crime." (Emphasis added). This provision specifically authorizes circuit courts of this State to place on probation any person convicted of a crime to the extent that such authority is provided for in other sections of article 12.
Section 2 sets forth the categories of persons who shall be initially eligible for probation upon the conviction of a crime. Section 10 is the source of a circuit court's authority to continue the period of probation where a term or condition of probation has been violated. This section reads in pertinent part as follows:
If, despite a violation of the conditions of probation, the court or judge shall be of the opinion that the interests of justice do not require that probationer serve his sentence, the court or judge may, Except when the violation was the commission of a felony, again release him on probation. (emphasis supplied).
This section authorizes a circuit court to continue the term of probation despite the violation of a condition of probation where the interests of justice do not require the probationer to serve his sentence. The Circuit Court, however, is expressly prohibited from releasing an individual on probation ". . . when the violation was the commission of a felony."
The respondent argues this exception is only...
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...court or judge may, except when the violation was the commission of a felony, again release him on probation." In State ex rel. Hanley v. Hey, 163 W.Va. 103, 255 S.E.2d 354, cert. denied, 444 U.S. 928, 100 S.Ct. 269, 62 L.Ed.2d 105 (1979), we held that this provision precludes a court from ......
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