State ex rel. Nicholson v. Boles, 12292

Citation148 W.Va. 229,134 S.E.2d 576
Decision Date04 February 1964
Docket NumberNo. 12292,12292
CourtSupreme Court of West Virginia
PartiesSTATE ex rel. Warren V. NICHOLSON v. Otto C. BOLES, Warden.

Syllabus by the Court.

1. A habeas corpus proceeding is not a substitute for a writ of error or other appellate process, and error in a final judgment in a criminal case, which renders such judgment voidable merely but not void, can not be considered or corrected in such proceeding; but if a sentence of imprisonment under which a person is confined is void, in whole or in part, it may be reached and controlled in a habeas corpus proceeding.

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

3. 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.

4. When a statute prescribes a definite term of imprisonment the judgment of imprisonment, to be valid, must be so definite and certain in its terms that the prisoner and the officer charged with the execution of the sentence may ascertain the term of imprisonment from the judgment.

5. In a criminal case a judgment which imposes an indeterminate sentence for an offense for which by statute a sentence for a definite term is prescribed and as to which offense the statute authorizing an indeterminate sentence does not apply, is a void judgment; and in a habeas corpus proceeding a person serving such an indeterminate sentence will be released from confinement under such void judgment.

William E. Hamb, Charleston, for relator.

C. Donald Robertson, Atty. Gen., J. Patrick Bower, Asst. Atty. Gen., Charleston, for respondent.

HAYMOND, President:

In this original habeas corpus proceeding the petitioner, Warren V. Nicholson, a prisoner in the West Virginia Penitentiary, seeks a writ to require the defendant, Otto C. Boles, Warden of the Penitentiary, to release the petitioner from the custody of the defendant under an indeterminate sentence of not less than ten years nor more than twenty years, entered by the Circuit Court of Wood County on September 17, 1958, which sentence the petitioner asserts is null and void and of no force or effect.

Upon the filing of the petition and its exhibits, this Court, by order entered March 5, 1963, refused to issue the writ prayed for by the petitioner.

Upon petition for a writ of certiorari to this Court, the Supreme Court of the United States, by order entered October 14, 1963, on Justice dissenting, vacated the March 5, 1963 judgment of this Court and remanded this proceeding to this Court for further consideration. Nicholson v. Boles, 375 U.S. 25, 84 S.Ct. 89, 11 L.Ed.2d 43.

Upon the remand of this proceeding it was submitted for decision January 8, 1964, upon the petition and its exhibits, the answer to the petition and the return of the defendant, and the written briefs of the attorneys for the respective parties.

The material facts are not disputed and the question presented for decision is a question of law.

On July 16, 1958, the grand jury of Wood County returned a felony indictment against the petitioner which charged that the petitioner, being armed with a dangerous and deadly weapon, in Wood County, feloniously assaulted one Johnny Milanese and took from him the sum of $5,384.50, lawful money, currency of the United States of America, then in the lawful custody, care, management and control of Milanese, but which belonged to the Community Savings and Loan Company. On September 16, 1958, the petitioner entered a plea of guilty to the foregoing indictment and on September 17, 1958 he was sentenced by the Circuit Court of Wood County to confinement in the West Virginia Penitentiary for an indeterminate term of not less than ten years nor more than twenty years.

The petitioner contends that as the indictment returned against him charged him with the offense of armed robbery the only valid sentence that could have been imposed by the circuit court was a sentence of a definite term of not less than ten years, as provided by the first paragraph of Section 12, Article 2, Chapter 61, Code, 1931, as amended, upon his conviction of that crime; that the circuit court was without jurisdiction to impose the indeterminate sentence of not less than ten years nor more than twenty years which is the sentence prescribed by the second paragraph of the same Section, Article and Chappter, Code, 1931, as amended, for the crime of armed robbery of a bank, a separate and distinct offense from that for which the petitioner was indicted and to which he pleaded guilty; and that the imposition of the indeterminate sentence, instead of a sentence for a definite term of not less than ten years, by the circuit court was beyond its jurisdiction and for that reason is void and of no force or effect.

The defendant admits that the petitioner should have been sentenced to a definite term of not less than ten years, as prescribed by the first paragraph of Section 128 Article 2, Chapter 61, Code, 1931, as amended, but insists that the imposition of the indeterminate sentence in lieu of the definite sentence, though improper, is a mere error or irregularity which renders the sentence erroneous and voidable but not void and does not entitle the petitioner in this proceeding to a writ discharging him from his present confinement.

The controlling question for decision in this proceeding is whether the indeterminate sentence, improperly imposed by the circuit court, instead of the prescribed sentence of a definite term of years, is merely erroneous and voidable and not controllable by habeas corpus or is void and as such may be reached and controlled in a habeas corpus proceeding.

The action of the Supreme Court of the United States, in reversing the judgment of this Court denying the writ, indicates that it considered the indeterminate sentence imposed by the circuit court to be not an error or irregularity which rendered that sentence merely erroneous and voidable but that it was a defect which could be considered and controlled in a habeas corpus proceeding.

This Court has consistently held in many cases that a habeas corpus proceeding in not a substitute for a writ of error or other appellate process, and that error in a final judgment in a criminal case, which renders such judgment merely voidable but not void, can not be considered or corrected in such proceeding; but that if a sentence of imprisonment under which a person is confined is void, in whole or in part, it may be reached and controlled in a habeas corpus proceeding. State ex rel. Clark v. Adams, 144 W.Va. 771, 111 S.E.2d 336, 89 A.L.R.2d 528, certiorari denied, 363 U.S. 807, 80 S.Ct. 1242, 4 L.Ed.2d 1149; State ex rel. Burkhamer v. Adams, 143 W.Va. 557, 103 S.E.2d 777, certiorari denied, 358 U.S. 869, 79 S.Ct. 102, 3 L.Ed.2d 101; State ex rel. Browning v. Tucker, 142 W.Va. 830, 98 S.E.2d 740; State ex rel. Lovejoy v. Skeen, 138 W.Va. 901, 78 S.E.2d 456, certiorari denied, 349 U.S. 940, 75 S.Ct. 786, 99 L.Ed. 1268; State ex rel. Vascovich v. Skeen, 138 W.Va. 417, 76 S.E.2d 283, certiorari denied, 346 U.S. 916, 74 S.Ct. 277, 98 L.Ed. 411; Dye v. Skeen, 135 W.Va. 90, 62 S.E.2d 681, 24 A.L.R.2d 1234; State ex rel. Nutter v. Mace, 130 W.Va. 676, 44 S.E.2d 851; Slater v. Melton, 119 W.Va. 259, 193 S.E. 185; Scott v. Harshbarger, 116 W.Va. 300, 180 S.E. 187; Ex Parte Veltri, 83 W.Va. 226, 98 S.E. 146; Ex Parte Barr, 79 W.Va. 681, 91 S.E. 655; Ex Parte Mylius, 61 W.Va. 405, 56 S.E. 602, 10 L.R.A.,N.S., 1098, 11 Ann.Cas. 812; Ex Parte Evans, 42 W.Va. 242, 24 S.E. 888; Ex Parte Mooney, 26 W.Va. 36, 53 Am.Rep. 59.

A person imprisoned under a void sentence will be released from such imprisonment by a writ of habeas corpus. State ex rel. Browning v. Boles, W.Va., 132 S.E.2d 505; State ex rel. Taylor v. Boles, W.Va., 130 S.E.2d 693; State ex rel. Slatton v. Boles, W.Va., 130 S.E.2d 192; State ex rel. Soto v. Adams, 145 W.Va. 591, 115 S.E.2d 497; State ex rel. Gerst v. Adams, 145 W.Va. 580, 115 S.E.2d 496; State ex rel. Vandal v. Adams, 145 W.Va. 566, 115 S.E.2d 489; State ex rel. Firestone v. Adams, 145 W.Va. 194, 113 S.E.2d 830; State ex rel. Browning v. Tucker, 142 W.Va. 830, 98 S.E.2d 720; State ex rel. Vascovich v. Skeen, 138 W.Va. 417, 76 S.E.2d 283, certiorari denied, 346 U.S. 916, 74 S.Ct. 277, 98 L.Ed. 411; Scott v. Harshbarger, 116 W.Va. 300, 180 S.E. 187; Ex Parte Brinkman, 93 W.Va. 351, 116 S.E. 757; Ex Parte Veltri, 83 W.Va. 226, 98 S.E. 146; Ex Parte Barr, 79 W.Va. 681, 91 S.E. 655; Ex Parte Bornee, 76 W.Va. 360, 85 S.E. 529, L.R.A.1915F, 1093; Ex Parte Mylius, 61 W.Va. 405, 56 S.E. 602, 10 L.R.A., N.S., 1098, 11 Ann.Cas. 812; Ex Parte Evans, 42 W.Va. 242, 24 S.E. 888; Ex Parte Mooney, 26 W.Va. 36, 53 Am.Rep. 59.

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 punishment inflicted, renders the judgment absolutely void. 15 Am.Jur., Criminal Law, Section 443; 41 C.J.S. Homicide § 433; State ex rel. Chafin v. Bailey, 106 W.Va. 32, 144 S.E. 574; Anderson v. Rives, 66 App.D.C. 174, 85 F.2d 673; Lee Lim v. Davis, 75 Utah 245, 284 P. 323, 76 A.L.R. 460. It has also been held that a sentence in a criminal case which is not imposed in strict conformity to the penalty prescribed by statute is not merely voidable but is void for the reason that such sentence is in excess of the jurisdiction of the court. De Benque 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....

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