State ex rel. Simpkins v. Harvey, No. 15769

CourtSupreme Court of West Virginia
Writing for the CourtMcGRAW
Citation172 W.Va. 312,305 S.E.2d 268
PartiesSTATE ex rel. Florida SIMPKINS v. Hon. Robert HARVEY, Judge, etc.
Decision Date29 June 1983
Docket NumberNo. 15769

Page 268

305 S.E.2d 268
172 W.Va. 312
STATE ex rel. Florida SIMPKINS
v.
Hon. Robert HARVEY, Judge, etc.
No. 15769.
Supreme Court of Appeals of
West Virginia.
June 29, 1983.

Page 270

[172 W.Va. 314] Syllabus by the Court

1. "A statute should be so read and applied as to make it accord with the spirit, purposes and objects of the general system of law of which it is intended to form a part; it being presumed that the legislators who drafted and passed it were familiar with all existing law, applicable to the subject matter, whether constitutional, statutory or common, and intended the statute to harmonize completely with the same and aid in the effectuation of the general purpose and design thereof, if its terms are consistent therewith." Syllabus Point 5, State v. Snyder, 64 W.Va. 659, 63 S.E. 385 (1908).

2. A person convicted of an offense proscribed by W.Va.Code § 17C-5-2 (Cum.Supp.1982), if otherwise eligible, may be imprisoned in a youthful male offender center for purpose of treatment pursuant to W.Va.Code § 25-4-6 (1980 Replacement Vol.).

3. A criminal defendant is not entitled by law to compel a presentence investigation prior to the entry of a plea.

William W. Pepper and Andrew S. Nason, Charleston, for relator.

Chauncey H. Browning, Jr., Atty. Gen., and Gregory W. Bailey, Deputy Atty. Gen., Charleston, for respondent.

McGRAW, Chief Justice:

In this original proceeding, Florida Simpkins, the petitioner, seeks to compel the Honorable Robert Harvey, Judge of the Circuit Court of Kanawha County, the respondent, to order the preparation of a presentence investigation report, and to prohibit him from proceeding to try the petitioner until such report has been prepared. The underlying issue presented in this proceeding is whether W.Va.Code § 17C-5-2 (Cum.Supp.1982) imposes a mandatory penitentiary sentence precluding release on probation pursuant to W.Va. §§ 62-12-2, -3 (Cum.Supp.1982), or imprisonment in a

Page 271

youthful male offender center for treatment pursuant to W.Va.Code § 25-4-1 et seq. (1980 Replacement Vol.). We find that probation and treatment as a youthful male offender are valid sentencing alternatives for one convicted of an offense proscribed by W.Va.Code § 17C-5-2. However, we deny the writ because we find that the petitioner is not entitled to the specific relief which he seeks in this mandamus proceeding.

The petitioner was indicted for driving under the influence of alcohol and causing the death of another person in violation of W.Va.Code § 17C-5-2(a). This offense is a felony punishable by confinement in the penitentiary for not less than one nor more than three years, and by a fine of not less than one thousand dollars. 1

On November 17, 1982, the petitioner appeared in court prepared to enter a [172 W.Va. 315] guilty plea to the charge in the indictment pursuant to a plea bargain agreement with the State. As its part of the bargain, the State agreed to stand silent at sentencing. In reaching their agreement, both the prosecuting attorney and defense counsel assumed that the petitioner was eligible for probation or for treatment as a youthful male offender.

Prior to entering his plea, the petitioner requested that a presentence investigation report be prepared to aid the court in deciding whether the petitioner should be released on probation or confined in a youthful male offender center. The court denied the petitioner's request, reasoning that W.Va.Code § 17C-5-2 provides for a mandatory penitentiary sentence precluding release on probation or treatment as a youthful male offender. The court therefore concluded that a presentence investigation would serve no purpose.

I.

The issues interposed by the parties in this mandamus proceeding involve the interrelationship of our probation statutes, found in article 12 of chapter 62, the Youthful Male Offender Act, W.Va. § 25-4-1, et seq., and our statute prescribing the penalties for driving under the influence of alcohol, W.Va.Code § 17C-5-2.

Our probation statutes provide generally that any person convicted of a felony, the maximum penalty for which is less than life imprisonment, shall be eligible for probation, provided they have not been convicted of a felony within the preceding five years. 2 We have held in the past that unless a clear statutory exception applies,

Page 272

this legislative grant of power places the matter of probation within the sound discretion of the trial court. 3 State v. Wotring, 167 W.Va. 104, 279 S.E.2d 182 (1982); State ex rel. Winter v. MacQueen, 161 W.Va. 30, 239 S.E.2d 660 (1972). Release on probation is subject to express statutory conditions, as well as reasonable conditions imposed by the trial court, see W.Va.Code § 62-12-9 (1977 Replacement Vol.); 4 Louk v. Haynes, 159 W.Va. 482, [172 W.Va. 316] 223 S.E.2d 780 (1976), which may be imposed for a maximum period of five years. W.Va.Code § 62-12-11 (1977 Replacement Vol.).

The Youthful Male Offender Act, W.Va. § 25-4-1 et seq., grants to the trial court the power to suspend the sentence of any male youth between the ages of 16 and 21 who has been convicted of a criminal offense, other than an offense punishable by life imprisonment, and to confine him in a youthful male offender center for treatment. W.Va. § 25-4-6. Upon completion of the treatment program, or upon a determination that he is unfit for treatment, the offender is returned to the sentencing court for probation or resentencing. Id. 5 The Act and our probation statutes are to be

Page 273

read and considered together in determining their scope and effect. State v. Reel, 152 W.Va. 646, 165 S.E.2d 813 (1969).

The pertinent language of W.Va.Code § 17C-5-2 provides: "The sentences provided herein upon conviction of a violation of this article are mandatory and shall not be subject to suspension or probation, except that the court may provide for community service, or work release alternatives, or weekends or part-time confinements." W.Va.Code § 17C-5-2(l ). This statutory language was enacted into law in 1981. See 1981 W.Va.Acts ch. 159. 6

The respondent characterizes the language of W.Va.Code § 17C-5-2 as being in conflict with, and repugnant to, the grant of probationary power contained in W.Va.Code § 62-12-2 and the power to imprison appropriate defendants in a youthful male offender center contained in W.Va.Code 25-4-6. The respondent then argues that W.Va.Code § 17C-5-2, being a specific enactment, should control over the general provisions of our probation statutes and the Youthful Male Offender Act. While we recognize that a general statutory enactment must yield to a specific statutory enactment where the statutes relate to the same subject and cannot be reconciled, see, e.g., State ex rel. Sahley v. Thompson, 151 W.Va. 336, 151 S.E.2d 870 (1966); see also [172 W.Va. 317] State ex rel. Myers v. Woods, 154 W.Va. 431, 175 S.E.2d 637 (1970), we find no conflict in the statutes which requires application of this principle.

The cardinal rule in the construction of statutes is to ascertain and give effect to the intention of the Legislature. Vest v. Cobb, 138 W.Va. 660, 76 S.E.2d 885 (1953); Pond Creek Pocahontas Co. v. Alexander, 137 W.Va. 864, 74 S.E.2d 590 (1953). Primarily, such intent must be determined from the language of the statute, see Spencer v. Yerace, 155 W.Va. 54, 180 S.E.2d 868 (1971); State v. General Daniel Morgan Post No. 548, Veterans of Foreign Wars, 144 W.Va. 137, 107 S.E.2d 353 (1959), and where the statute is clear and unambiguous and legislative intent is plain, it is the duty of the court to apply the statute, and not to construe it. See Cummins v. State Workmen's Compensation Comm'r, 152 W.Va. 781, 166 S.E.2d 562 (1969); State v. Bragg, 152 W.Va. 372, 163 S.E.2d 685 (1968). Where, however, the language used is ambiguous, the court, in ascertaining the legislative intent, should consider the subject matter of the legislation, its purposes, objects and effects in addition to its express terms. See, e.g., State ex rel. Holbert v. Robinson, 134 W.Va. 524, 59 S.E.2d 884 (1950).

Turning to the language of W.Va.Code § 17C-5-2, we note that subsection (l ), in its first clause, provides that the sentences provided for a violation of any offense under article 5 of chapter 17C "are mandatory and shall not be subject to suspension or probation ...." However, the next clause of subsection (l ) expressly provides an exception 7 to this rule: "[E]xcept that the court may provide for community service, or work release alternatives, or weekends or part-time confinements." The effect of this language is to remove the enumerated alternatives from the operation of the preceding clause, thus limiting the mandatory language of subsection (l ). See generally Sutherland Statutory Construction §§ 20.22; 47.11 (1972). This Court has held in the past that where such an exception occurs in a penal statute, the statute as a whole must be construed by application of

Page 274

the rule of strict construction to the penal clause. State v. Cunningham, 90 W.Va. 806, 111 S.E. 835 (1922). Further support for the application of this rule of construction to W.Va.Code § 17C-5-2 can be found in more recent pronouncements that "[p]enal statutes must be strictly construed against the State and in favor of the defendant," Syllabus Point 2, State v. Ball, 164 W.Va. 588, 264 S.E.2d 844 (1980), 8 and by the rule that statutes dealing with probation are remedial in nature and subject to a construction in favor of the defendant. See State v. Wotring, supra; State ex rel. Hanley v. Hey, 163 W.Va. 103, 255 S.E.2d 354 (1979). Applying these principles to the language of W.Va.Code § 17C-5-2(l ), we conclude that when one or more of the specified sentencing alternatives are imposed, the mandatory language contained in the first clause of subsection (l ) of W.Va.Code § 17C-5-2, which precludes suspension or probation, is inapplicable.

Our conclusion is buttressed by an examination of...

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80 practice notes
  • Powell v. Time Ins. Co., No. 18224
    • United States
    • Supreme Court of West Virginia
    • June 16, 1989
    ...680 P.2d 877 (1984); Martin v. Rent Control Bd. of Cambridge, 19 Mass.App. 745, 477 N.E.2d 426 (1985); State ex rel. Simpkins. v. Harvey, 172 W.Va. 312, 305 S.E.2d 268 (1983). See generally 1A Sutherland Statutory Construction § 20:22 (4th ed. 1985); 2A Sutherland Statutory Construction § 4......
  • Flack v. Ballard, No. 15-0901.
    • United States
    • Supreme Court of West Virginia
    • June 9, 2017
    ...or the arson, it was impossible for us to determine which of the two charges the jury found to be the underlying felony. Id. at 312, 305 S.E.2d at 268. Accordingly, to ensure that double jeopardy principles were not violated, we reversed the sentences for both the arson and robbery convicti......
  • Peters v. Rivers Edge Min., Inc., No. 34272.
    • United States
    • Supreme Court of West Virginia
    • June 4, 2009
    ...same body of law, they should be construed and applied consistently with one another. See Syl. pt. 1, State ex rel. Simpkins v. Harvey, 172 W.Va. 312, 305 S.E.2d 268 (1983) ("`A statute should be so read and applied as to make it accord with the spirit, purposes and objects of the general s......
  • Peters v. Rivers Edge Mining, Inc., No. 34272 (W.Va. 3/27/2009), No. 34272
    • United States
    • Supreme Court of West Virginia
    • March 27, 2009
    ...same body of law, they should be construed and applied consistently with one another. See Syl. pt. 1, State ex rel. Simpkins v. Harvey, 172 W. Va. 312, 305 S.E.2d 268 (1983) ("'A statute should be so read and applied as to make it accord with the spirit, purposes and objects of the general ......
  • Request a trial to view additional results
80 cases
  • Powell v. Time Ins. Co., No. 18224
    • United States
    • Supreme Court of West Virginia
    • June 16, 1989
    ...680 P.2d 877 (1984); Martin v. Rent Control Bd. of Cambridge, 19 Mass.App. 745, 477 N.E.2d 426 (1985); State ex rel. Simpkins. v. Harvey, 172 W.Va. 312, 305 S.E.2d 268 (1983). See generally 1A Sutherland Statutory Construction § 20:22 (4th ed. 1985); 2A Sutherland Statutory Construction § 4......
  • Flack v. Ballard, No. 15-0901.
    • United States
    • Supreme Court of West Virginia
    • June 9, 2017
    ...or the arson, it was impossible for us to determine which of the two charges the jury found to be the underlying felony. Id. at 312, 305 S.E.2d at 268. Accordingly, to ensure that double jeopardy principles were not violated, we reversed the sentences for both the arson and robbery convicti......
  • Peters v. Rivers Edge Min., Inc., No. 34272.
    • United States
    • Supreme Court of West Virginia
    • June 4, 2009
    ...same body of law, they should be construed and applied consistently with one another. See Syl. pt. 1, State ex rel. Simpkins v. Harvey, 172 W.Va. 312, 305 S.E.2d 268 (1983) ("`A statute should be so read and applied as to make it accord with the spirit, purposes and objects of the general s......
  • Peters v. Rivers Edge Mining, Inc., No. 34272 (W.Va. 3/27/2009), No. 34272
    • United States
    • Supreme Court of West Virginia
    • March 27, 2009
    ...same body of law, they should be construed and applied consistently with one another. See Syl. pt. 1, State ex rel. Simpkins v. Harvey, 172 W. Va. 312, 305 S.E.2d 268 (1983) ("'A statute should be so read and applied as to make it accord with the spirit, purposes and objects of the general ......
  • Request a trial to view additional results

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