State ex rel. Thompson v. Boles, 12585

• Decision Date: 15 November 1966
• Docket Number: No. 12585,12585
• Court: West Virginia Supreme Court
• Parties: STATE ex rel. Carl Mike THOMPSON v. Otto C. BOLES, Warden, etc.

Page 112

151 S.E.2d 112

151 W.Va. 203

STATE ex rel. Carl Mike THOMPSON v. Otto C. BOLES, Warden, etc.

No. 12585.

Supreme Court of Appeals of West Virginia.

Submitted Oct. 4, 1966.

Decided Nov. 15, 1966.

Syllabus by the Court

1. In a criminal case involving a sentence of imprisonment, the statutory period of time for appeal commences to run as of the date of the sentence.

2. Where, in a criminal case, the accused is convicted and sentenced to imprisonment and thereafter makes a request for a transcript of the proceedings of his trial for purposes of appeal, he is not, in that connection, denied due process of law and is not entitled to be relieved of further imprisonment pursuant to the sentence imposed on him if the transcript is furnished to him within the statutory appeal period.

Robert G. Wolpert, Charleston, for relator.

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

CALHOUN, Judge:

Carl Mike Thompson, the relator in this original proceeding in habeas corpus, is now serving in the West Virginia Penitentiary a sentence of life imprisonment imposed by the Intermediate Court of Ohio County pursuant to the habitual criminal statutes of this state. In his habeas corpus petition, he alleges that he is an indigent person and that he was improperly denied a transcript of the proceedings of his jury trial upon an indictment for a felony; and that he was also improperly denied a transcript of the proceedings of his subsequent jury trial upon an information which charged him with having been convicted previously of two felonies.

The case was submitted to the Court for decision upon the habeas corpus petition, upon the respondent's return, amended return, demurrer to the petition, and upon briefs and oral arguments of counsel.

It is clear from prior decisions of this Court that an indigent person who has been convicted of a felony and sentenced to the state penitentiary is entitled, upon his timely request, to require that a transcript of the proceedings of the trial be furnished to him without charge in order that he may apply for an appeal from the judgment of the trial court. An improper denial to an indigent person of such a transcript will be regarded as a denial of due process of law which will require that he be released by habeas corpus from further imprisonment pursuant to such sentence. State ex rel. Kennedy v. Boles, 150 W.Va. 504, 147 S.E.2d 391; State ex rel. Banach v. Boles, 147 W.Va. 850, 131 S.E.2d 722. The same legal principles apply in relation to a jury trial upon an information filed pursuant to the habitual criminal statutes. State ex rel. Legg v. Boles, 148 W.Va. 354, 135 S.E.2d 257. We are of the opinion, however, that the record does not sustain the allegations of the petition relative to the failure to furnish the transcripts to the relator.

By a letter dated January 31, 1966, and received by the relator in the penitentiary, the Judge of the Intermediate Court of Ohio County acknowledged receipt of the relator's request for a transcript of the proceedings of the trial on the indictment and a transcript of the proceedings of the trial upon the information. In the letter, the judge promised to send 'the transcript' to the relator 'as soon as possible, consistent with the business of the court during the February term.'

Appended to and made a part of the return in this habeas corpus proceeding is a writing dated March 28, 1966, alleged to have been signed by the relator, by which he acknowledged receipt from the court reporter of a transcript of the court proceedings on November 8, 1965, that being the date of his trial and conviction on the indictment; a transcript of...