State ex rel. Lovejoy v. Boles

• Decision Date: 01 June 1965
• Docket Number: No. 12445,12445
• Citation: 149 W.Va. 532,142 S.E.2d 374
• Court: West Virginia Supreme Court
• Parties: STATE ex rel. Ronceford LOVEJOY v. Otto C. BOLES, Warden, West Virginia Penitentiary.

Page 374

142 S.E.2d 374

149 W.Va. 532

STATE ex rel. Ronceford LOVEJOY v. Otto C. BOLES, Warden, West Virginia Penitentiary.

No. 12445.

Supreme Court of Appeals of West Virginia.

Submitted May 18, 1965.

Decided June 1, 1965.

Syllabus by the Court

1. 'The denial of the fundamental right of the defendant to the assistance of counsel in a criminal proceeding applies to and invalidates any prior conviction of an offense within the meaning of a recidivist statute, and such conviction and any sentence of imprisonment imposed upon it, being null and void because of such denial, can not justify or support the imposition of any additional punishment under such statute.' Point 1, syllabus, State ex rel. Whytsell v. Boles, W.Va. .

2. 'To justify the imposition, under the recidivist statute of this State, of a sentence in excess of the sentence provided for the principal offense, the previous conviction and sentence must be a valid conviction and sentence; and if such previous conviction and sentence are void they will not constitute the basis for the imposition of the punishment provided by such statute and, in that situation, such statute will be deemed to be wholly inapplicable.' Point 2, syllabus, State ex rel. Whytsell v. Boles, W.Va. .

3. 'A judgment which is wholly void, or is void in part, is subject to collateral attack and the enforcement of such judgment will be prevented in a habeas corpus proceeding.' Point 5, syllabus, State ex rel. Beckett v. Boles, W.Va. .

4. A person imprisoned under the valid portion of a sentence imposed upon his conviction of a principal offense who has fully served the maximum sentence provided by law for such offense will be released from custody by a writ of habeas corpus.

Dan D. Dahill, Logan, for relator.

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

HAYMOND, Judge:

This is an original habeas corpus proceeding instituted in this Court on March 22, 1965, in which the petitioner, Ronceford Lovejoy, seeks a writ to require the defendant, Otto C. Boles, Warden of the West Virginia Penitentiary, to release him from the penitentiary where he is presently confined under a sentence of life imprisonment, imposed by the Circuit Court of Logan County, West Virginia, on June 12, 1953.

Upon the filing of the petition in this proceeding this Court issued a writ returnable May 18, 1965 and appointed counsel to represent the petitioner. Upon the return day of the writ this proceeding was submitted for decision upon the petition and its exhibits, the answer of the defendant and its exhibits, the written brief in behalf of the petitioner and the oral arguments in behalf of the respective parties. No written brief was filed in behalf of the defendant, who produced the body of the petitioner as commanded by the writ and also filed an answer. The answer alleged that the petitioner was indicted by the grand jury of the Circuit Court of Logan County on May 16, 1934; that the indictment contained two counts, one of which charged the petitioner and another person with breaking and entering a certain store house and the other of which charged the petitioner and another person with entering without breaking a certain store house; that on May 18, 1934, the petitioner was arraigned in court in the custody of the sheriff and entered a plea of guilty to the foregoing indictment and by final judgment rendered on that date the petitioner was sentenced to imprisonment in the penitentiary of this State for a period of three years; that petitioner was again indicted by the grand jury of the Circuit Court of Logan County, West Virginia, on September 14, 1937; that the indictment contained two counts, one of which charged the petitioner and certain other persons with breaking and entering a certain store house and the other of which charged the petitioner and certain other persons with entering without breaking a certain store house; that on September 20, 1937, the petitioner was arraigned in court in the custody of the sheriff and entered a plea of guilty to the foregoing indictment and on October 21, 1937, by final judgment rendered on that date, the petitioner was sentenced to confinement in the penitentiary of this State for a period of five years; that the petitioner was for a third time indicted by the grand jury of the Circuit Court of Logan County on January 12, 1953, for the crime of grand larceny, which indictment charged that the petitioner and another person did steal, take and carry away a certain quantity of copper wire of the value of $75.00 of the goods and chattels of West Virginia Coal and Coke Corporation; that on May 20, 1953, the petitioner was arraigned in court in the custody of the sheriff and entered his plea of not guilty to the offense charged against him in the indictment; that upon the trial of the indictment the petitioner was found guilty as charged; that on June 12, 1953, the prosecuting attorney of Logan County filed an information alleging the two former...