State ex rel. Powers v. Boles, No. 12351

CourtSupreme Court of West Virginia
Writing for the CourtCALHOUN
Citation138 S.E.2d 159,149 W.Va. 6
PartiesSTATE ex rel. William K. POWERS v. Otto C. BOLES, Warden, etc.
Docket NumberNo. 12351
Decision Date29 September 1964

Page 159

138 S.E.2d 159
149 W.Va. 6
STATE ex rel. William K. POWERS
v.
Otto C. BOLES, Warden, etc.
No. 12351.
Supreme Court of Appeals of West Virginia.
Submitted Sept. 2, 1964.
Decided Sept. 29, 1964.

Page 160

Syllabus by the Court

1. '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.' Point 3 Syllabus, State ex rel. Nicholson v. Boles, Warden, W.Va. [134 S.E.2d 576].

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.' Point 3 Syllabus, State ex rel. Boner v. Boles, Warden, W.Va. [137 S.E.2d 418].

3. 'A sentence at variance with statutory requirements is void and may be superseded by a new sentence in conformity with statutory provisions, and such new sentence may be rendered after such prior sentence has been partially served or after the term of court has expired even though such new sentence imposes a greater punishment.' Point 4 Syllabus, State ex rel. Boner v. Boles, Warden, W.Va. [137 S.E.2d 418].

4. 'A person imprisoned under a void sentence will be released from such imprisonment by a writ of habeas corpus.' Point 8 [149 W.Va. 7] Syllabus, State ex rel. Boner v. Boles, Warden, W.Va. [137 S.E.2d 418].

5. A person accused of a crime may waive his constitutional right to assistance of counsel and his constitutional right to trial by jury, if such waivers are made intelligently and understandingly.

6. Where the record affirmatively discloses that a person accused of a crime expressly waived his constitutional right to assistance of counsel and his constitutional right to trial by jury and entered a plea of guilty to the charge, such waivers and such plea of guilty will not be held in a habeas corpus proceeding to be void on the ground that such waivers were not made intelligently and understandingly or that the plea of guilty was not entered intelligently and understandingly, unless such contentions are supported by proper allegations and by a preponderance of the evidence.

Samuel D. Littlepage, Point Pleasant, Harry F. Thompson, Jr., Huntington, for relator.

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

CALHOUN, Judge.

In this proceeding in habeas corpus, William K. Powers, the relator, asserts that he is illegally detained in the state penitentiary.

On May 9, 1963, the relator entered a plea of guilty in the Circuit Court of Mason County to an indictment charging him with having obtained money and property by false pretense in violation of the provisions of Code, 1931, 61-3-24, a portion of which is as follows: 'If any person obtain from another, by any false pretense, token or representation, with intent to defraud, money, goods or other property which may be the subject of larceny * * *; every person so offending against any of the provisions of this section shall be guilty of a felony, and, upon conviction,

Page 161

shall be confined in the penitentiary not less than one nor more than five years, * * *.'

[149 W.Va. 8] It is asserted in behalf of the relator and admitted by the attorney general that the circuit court imposed an improper sentence of from one to ten years instead of a proper sentence of from one to five years.

The sentence imposed, not being in conformity with or authorized by the statute, is void and may be superseded by a new sentence in conformity with the statute. The new sentence may be imposed even though the relator has served a portion of the void sentence and even though the term of court at which it was pronounced has adjourned. The relator in these circumstances is entitled to be released from his imprisonment pursuant to the void sentence, but without prejudice to the right of the state to proceed further against him to impose a proper and valid sentence in a manner provided by law. In the event a new and valid sentence is imposed upon the...

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34 practice notes
  • State ex rel. Beckett v. Boles, No. 12342
    • United States
    • Supreme Court of West Virginia
    • November 24, 1964
    ...attack and the enforcement of such judgment will be prevented in a habeas corpus proceeding. State ex rel. Powers v. Boles, W.Va., 138 S.E.2d 159; State ex rel. Boner v. Boles, W.Va., 137 S.E.2d 418; State ex rel. Robb v. Boles, W.Va., 136 S.E.2d 891; State ex rel. Bonnette v. Boles, W.Va.,......
  • State ex rel. Muldrew v. Boles, No. 12687
    • United States
    • Supreme Court of West Virginia
    • January 23, 1968
    ...supported by proper allegations and by a preponderance of the evidence.' (State ex rel.) Powers v. Boles, Warden, etc., Point 6 Syllabus, 149 W.Va. 6 (138 S.E.2d 4. In a case in which a prisoner who has been released by habeas corpus from imprisonment in the state penitentiary on the ground......
  • State ex rel. Smith v. Boles, No. 12485
    • United States
    • Supreme Court of West Virginia
    • January 12, 1966
    ...Warden, 149 W.Va. 292, 140 S.E.2d 608; State ex rel. Ashworth v. Boles, 148 W.Va. 13, 132 S.E.2d 634; State ex rel. Powers v. Boles, 149 W.Va. 6, 138 S.E.2d This case is governed by the Massey case cited above in which the same issue was raised; and it was held that where the record was sil......
  • State v. Surber, No. 11–0361.
    • United States
    • Supreme Court of West Virginia
    • February 24, 2012
    ...right to trial by jury, if such waivers are made intelligently and understandingly.” Syllabus Point 5, State ex rel. Powers v. Boles, 149 W.Va. 6, 138 S.E.2d 159 (1964). 5. “A defendant in a criminal proceeding who is mentally competent and sui juris, has a constitutional right to appear an......
  • Request a trial to view additional results
34 cases
  • State ex rel. Beckett v. Boles, No. 12342
    • United States
    • Supreme Court of West Virginia
    • November 24, 1964
    ...attack and the enforcement of such judgment will be prevented in a habeas corpus proceeding. State ex rel. Powers v. Boles, W.Va., 138 S.E.2d 159; State ex rel. Boner v. Boles, W.Va., 137 S.E.2d 418; State ex rel. Robb v. Boles, W.Va., 136 S.E.2d 891; State ex rel. Bonnette v. Boles, W.Va.,......
  • State ex rel. Muldrew v. Boles, No. 12687
    • United States
    • Supreme Court of West Virginia
    • January 23, 1968
    ...supported by proper allegations and by a preponderance of the evidence.' (State ex rel.) Powers v. Boles, Warden, etc., Point 6 Syllabus, 149 W.Va. 6 (138 S.E.2d 4. In a case in which a prisoner who has been released by habeas corpus from imprisonment in the state penitentiary on the ground......
  • State ex rel. Smith v. Boles, No. 12485
    • United States
    • Supreme Court of West Virginia
    • January 12, 1966
    ...Warden, 149 W.Va. 292, 140 S.E.2d 608; State ex rel. Ashworth v. Boles, 148 W.Va. 13, 132 S.E.2d 634; State ex rel. Powers v. Boles, 149 W.Va. 6, 138 S.E.2d This case is governed by the Massey case cited above in which the same issue was raised; and it was held that where the record was sil......
  • State v. Surber, No. 11–0361.
    • United States
    • Supreme Court of West Virginia
    • February 24, 2012
    ...right to trial by jury, if such waivers are made intelligently and understandingly.” Syllabus Point 5, State ex rel. Powers v. Boles, 149 W.Va. 6, 138 S.E.2d 159 (1964). 5. “A defendant in a criminal proceeding who is mentally competent and sui juris, has a constitutional right to appear an......
  • Request a trial to view additional results

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