State ex rel. Truslow v. Boles
| Decision Date | 30 June 1964 |
| Docket Number | No. 12333,12333 |
| Citation | 137 S.E.2d 235,148 W.Va. 707 |
| Court | West Virginia Supreme Court |
| Parties | STATE ex rel. Claude W. TRUSLOW v. Otto C. BOLES, Warden, West Virginia Penitentiary. |
Syllabus by the Court
1. Where a statute provides for a definite sentence at the time of the commission of a crime and such statute is later changed by the legislature providing for an indeterminate sentence under which the sentence was imposed wherein the maximum limit of the indeterminate sentence imposed is more than the minimum provided for at the time of the commission of the crime, such sentence is void.
2. If a sentence under which a person is confined to the penitentiary is void, a writ of habeas corpus will be granted to release him from such imprisonment.
John T. Poffenbarger, Charleston, for relator.
C. Donald Robertson, Atty. Gen., George H. Mitchell, Asst. Atty. Gen., Charleston, for respondent.
This habeas corpus proceeding was instituted under the original jurisdiction of this Court by the petitioner Claude W. Truslow, and on May 18, 1964, a writ of habeas corpus ad subjiciendum was granted returnable June 2, 1964. John T. Poffenbarger, Charleston, West Virginia, was appointed counsel for the petitioner.
The petitioner appeared before this Court on the return day of the writ in the custody of the defendant, Otto C. Boles, Warden of the West Virginia State Penitentiary. No answer or brief was filed on behalf of the defendant, and when the case was called on the argument docket the attorney for the defendant announced that the state did not wish to contest the matter and the case was submitted to the Court for decision on the brief of counsel for the petitioner.
The petitioner was indicted by the Kanawha County Grand Jury at the January 1961 Term for the offense of armed robbery. On May 15, 1961, he pleaded guilty to the offense of unarmed robbery and was committed to the custody of the West Virginia Board of Control for a period of from one to two years. On August 9, 1962, he was placed on probation for a period of two years. After violating the conditions of his probation, such probation was revoked and he was sentenced by the Intermediate Court of Kanawha County on March 13, 1964, to an indeterminate sentence of confinement in the West Virginia State Penitentiary of from five to eighteen years, with credit given for the time spent in the forestry camp which was under the jurisdiction of the Board of Control.
The crime involved in this case was committed in January 1961, at which time Code, 61-2-12, as amended, provided that after a conviction of the crime of unarmed robbery a person so convicted should be confined in the West Virginia State Penitentiary for a period of not less than five years. On March 10, 1961, the West Virginia Legislature, by Chapter 25, Acts of the Legislature, Regular Session, 1961, amended Code, 61-2-12, changing the penalty for the crime of unarmed robbery to confinement in the penitentiary for not less than five years not more than eighteen years.
It is the position of the petitioner that the sentence imposed upon him in March, 1964, is illegal and void, because it is a different sentence than the one provided for and in effect at the time of the commission of the crime in January, 1961, that the sentence under which he is confined in the penitentiary is a harsher sentence than the one provided for and in effect at the time of the commission of the crime, and that such sentence was imposed under an ex post facto law, in violation of Article III, Section 4 of the Constitution of West Virginia, and Article I, Sections 9 and 10 of the Constitution of the United States. The prisoner contends that the sentence under which he is confined is more onerous than was provided for at the time of the commission of the crime because he may only have been sentenced to...
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