State ex rel. Mundy v. Boles

• Decision Date: 07 July 1964
• Docket Number: No. 12344,12344
• Citation: 148 W.Va. 752,137 S.E.2d 240
• Court: West Virginia Supreme Court
• Parties: STATE ex rel. Donald Edward MUNDY v. Otto C. BOLES, Warden, West Virginia, Penitentiary.

Page 240

137 S.E.2d 240

148 W.Va. 752

STATE ex rel. Donald Edward MUNDY v. Otto C. BOLES, Warden, West Virginia, Penitentiary.

No. 12344.

Supreme Court of Appeals of West Virginia.

Submitted June 23, 1964.

Decided July 7, 1964.

Syllabus by the Court

1. 'Where a sentence imposed upon a person convicted of a crime does not comply with the penalty provided for in the statute relating to the crime in question, and the maximum limit of such sentence imposed is more than the minimum provided for in the statute, such sentence is void.' Pt. 1, syllabus, State ex rel. Facemyer v. Boles, Warden, West Virginia Penitentiary, W.Va., 137 S.E.2d 237, decided at this term of Court.

2. 'Where a sentence under which a person is confined to the penitentiary is void, a writ of habeas corpus will be granted to afford his release from such confinement.' Pt. 2, syllabus, State ex rel. Facemyer v. Otto C. Boles, Warden, West Virginia Penitentiary, W.Va., 137 S.E.2d 237, decided at this term of Court.

3. Where a person is serving concurrent sentences in the penitentiary for separate crimes for which he has been convicted and the sentence rendered for one of the crimes is void, which warrants release from confinement in the penitentiary upon proper application for a writ of habeas corpus based on the void sentence, the granting of the writ in such case does not authorize the release of such person from confinement in the penitentiary because he must still serve the sentence for the other crime, the validity of which has not been attacked in any manner.

John T. Poffenbarger, Charleston, for relator.

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

BERRY, Judge.

This petition for a writ of habeas corpus ad subjiciendum was filed under the original jurisdiction of this Court by Donald Edward Mundy, an inmate of the West Virginia Penitentiary, praying for his release therefrom on the ground that he is illegally confined therein under a void sentence from the Intermediate Court of Kanawha County. A writ was granted by this Court on June 16, 1964, returnable to June 23, 1964, at which time the case was submitted for decision.

The petitioner was indicated by the Grand Jury of Kanawha County, West Virginia, at the 1961 June Term of the Intermediate Court for the crime of robbery by striking and beating. On July 10, 1961, he pleaded guilty as charged in the indictment, and on July 14, 1961, the Intermediate Court of Kanawha County ordered him committed to a forestry camp. The petitioner violated the conditions of the commitment to the forestry camp and on May 21, 1962, the Court sentenced him to confinement in the state penitentiary for an indeterminate term of not less than five years nor more than eighteen years, with credit given for the time spent in the forestry camp, which sentence was to run concurrently with another sentence of not less than one year nor more than ten years imposed upon the petitioner for the crime of forgery for which he was convicted at the same term of Court as the crime involved in this proceeding.

The petitioner was sentenced, according to the order of the Intermediate Court, for the crime of 'unarmed robbery', as provided for in the second sentence of Code, 61-2-12, as amended by Chapter 25, Acts of the Legislature, Regular Session, 1961, which was passed by the legislature on March 10, 1961, effective ninety days from passage. This amendment changed the penalty for the crime commonly known as unarmed robbery under the second sentence of Code, 61-2-12, as amended, from confinement in the penitentiary of not less than five years to confinement in the penitentiary for not less than five years nor more than eighteen years. At the time the crime was committed in May, 1961, the amendment had not become effective and the penalty provided for at that time was confinement in the penitentiary of not less than five years.

It is the contention of the petitioner that the sentence imposed upon him is void, because it did not conform to the sentence provided for by the statute at the time the crime was committed.

It has been consistently held that where a definite sentence is provided for at the time of the commission of a crime, and the statute is later amended by the legislature providing for an indeterminate sentence which is imposed upon a person convicted of such crime, wherein the maximum limit of the indeterminate sentence is more than the minimum provided for in the statute at the time the crime was committed, such sentence is void. Ruben v. Welch, 4 Cir., 159 F.2d 493; State v. Fisher, 126 W.Va. 117, 27 S.E.2d 581; State ex rel. Truslow v. Boles, W.Va., 137 S.W.2d 235, decided at this term of Court; Lindsey v. Washington, 301 U.S. 397, 57 S.Ct. 797, 81 L.Ed. 1182. However, this is not the situation involved in the case at bar.

It appears from the record in this case that the petitioner was indicted for the commission of an offense provided for in the first sentence of Code, 61-2-12, as amended; that he pleaded guilty to the charge contained in the indictment, and the penalty for such an offense at the time of the commission of the crime in question was confinement in the penitentiary for a period of not less than ten years. When the statute was amended by Chapter 25, Acts of the Legislature, Regular Session, 1961, passed on March 10, 1961, it did not change the penalty for such crime, and the sentence imposed upon the petitioner should have conformed to the provisions of the statute in effect at the time of the commission of the crime and not at the time he was sentenced. The statute in question, Code, 61-2-12, as amended, in effect at the time of the commission of the crime, reads as follows:

'If any person commit, or attempt to commit, robbery by partial strangulation or suffocation, or by striking or beating, or by other violence to the person, or by the threat or presenting of firearms, or other deadly weapon or instrumentality whatsoever, he shall be guilty of a felony, and, upon conviction, shall be confined in the penitentiary not less than ten years. If any person commit, or attempt to commit, a robbery in any other mode or by any other means, except as provided for in the succeeding paragraph of this section, he shall be guilty of a felony, and, upon conviction, shall be confined in the penitentiary not less...