State ex rel. Render v. Wood
| Decision Date | 10 December 1968 |
| Docket Number | No. 12768,12768 |
| Citation | 165 S.E.2d 102,152 W.Va. 484 |
| Court | West Virginia Supreme Court |
| Parties | STATE ex rel. Willie RENDER, Jr. v. Honorable George W. WOOD, Judge of the Intermediate Court of Kanawha County. |
Syllabus by the Court
1. In a case in which one is duly convicted of a felony upon his plea of guilty and, on a subsequent day, the court suspends the imposition of sentence pursuant to the conviction and releases the prisoner on probation for a period of three years, the suspension of the imposition of sentence and the release of the prisoner on probation are not void or otherwise invalid merely because the prisoner, present in person in open court, was not represented by counsel when the court ordered the suspension of the imposition of sentence and the release of the prisoner on probation.
2. In a case in which one is convicted of a felony on his plea of guilty and the court, on a later day, suspends the imposition of sentence and releases the prisoner on probation for a period of three years and the court subsequently revokes the probation and sentences the prisoner to the state penitentiary at a hearing at which the prisoner, an indigent person, is not represented by counsel, and there is no showing or contention that he waived his right to be represented by counsel at such hearing, the revocation of probation and the sentence thus imposed are void.
3. In a case in which one has been convicted of a felony upon his plea of guilty and, on a subsequent day, the court suspends the imposition of sentence upon such conviction and releases the prisoner on probation for a period of three years, and such period of probation is not extended pursuant to the provisions of Code, 1931, 62--12--11, as amended, the court has no jurisdiction, after the expiration of such three-year period, to revoke the probation and to sentence the prisoner to the penitentiary upon such conviction, and the court's action in doing so is void and a nullity.
4. When a trial court enters an order which is void because, in so doing, the court acts without jurisdiction or in excess of its legitimate powers, this Court, in a proper proceeding in prohibition, will prohibit the enforcement of such void order.
Ernest H. Gilbert, Charleston, for relator.
C. Donald Robertson, Atty. Gen., of W. Va., Leo Catsonis, Asst. Atty. Gen., Charleston, for respondent.
In this prohibition proceeding instituted in this Court, Willie Render, Jr., who in this opinion may be referred to as the relator or as the prisoner, seeks to prohibit the respondent, Honorable George W. Wood, Judge of the Intermediate Court of Kanawha County, from resentencing the relator upon a plea of guilty entered by the relator to an indictment charging a felony.
The basic contention made in behalf of the relator is that the intermediate court now has no jurisdiction or authority to impose a sentence upon the plea of guilty previously entered by the relator in that court on October 25, 1961. It is essential to state in some detail the background facts in order to place in proper focus the precise basis of the contention that the trial court now lacks jurisdiction or authority to resentence the relator under the circumstances of this case.
In September, 1961, the relator, then seventeen years of age, was indicted by a grand jury in the Intermediate Court of Kanawha County upon a charge commonly referred to as 'unarmed robbery'. On October 25, 1961, the relator appeared in open court in person and by counsel and entered a plea of guilty to the charge contained in the indictment.
Further proceeding in the case were deferred in order that an investigation might be made to enable the court to determine whether the prisoner should be placed on probation. On January 10, 1962, the prisoner appeared in court in person, but without counsel; and thereupon the court, on its own motion, suspended imposition of sentence pursuant to the plea of guilty previously entered and placed the prisoner on probation for a period of three years. We deem it pertinent to note at this point that Code, 1931, 62--12--11, as amended, contains the following language: 'The period of probation together with any extension thereof shall not exceed five years. * * *.' There is no contention that the period of the three-year probation was ever extended.
On July 7, 1964, the relator was served with a notice requiring his appearance in the intermediate court for a hearing upon an alleged violation of the terms of his probation. In that connection he was notified that he was entitled to present witnesses in his behalf and to be represented by counsel at the hearing, but that the court 'is not authorized to appoint counsel for you.' The relator, being without funds with which to employ counsel, appeared at the hearing in person but without counsel. At the conclusion of testimony in favor of and against the prisoner at the hearing, the court forthwith revoked the probation previously granted and sentenced the prisoner to confinement in the state penitentiary for an indeterminate...
To continue reading
Request your trial
-
Jett v. Leverette
...of the length of the underlying criminal sentence. State v. Reel, 152 W.Va. 646, 165 S.E.2d 813 (1969); State ex rel. Render v. Wood, 152 W.Va. 484, 165 S.E.2d 102 (1968), Overruled on other grounds, Louk v. Haynes, supra, 223 S.E.2d at 787; State ex rel. Strickland v. Melton, 152 W.Va. 500......
-
Louk v. Haynes, 13651
...are establish or modified. 4. The first point of the syllabus and the correlative portion of the opinion of State ex rel. Render v. Wood, 152 W.Va. 484, 165 S.E.2d 102 (1968) are hereby expressly overruled and 5. Conditions of probation which are established or modified in the absence of ei......
-
Dobbs v. Wallace
...his probation revocation hearing. See State ex rel. Phillips v. Wood, 152 W.Va. 568, 165 S.E.2d 105 (1968) and State ex rel. Render v. Wood, 152 W.Va. 484, 165 S.E.2d 102 (1968). Thus, the right of an accused indigent to the assistance of counsel has been extended to revocation of probation......
-
State ex rel. Riffle v. Thorn
...the very recent decisions of this Court in State ex rel. Strickland v. Melton, etc., 152 W.Va. 500, 165 S.E.2d 90; State ex rel. Render v. Wood, 152 W.Va. 484, 165 S.E.2d 102 and State ex rel. Phillips v. Wood, 152 W.Va. 568, 165 S.E.2d 105, hereafter referred to as Mempa, Strickland, Rende......