State ex rel. Winter v. MacQueen, 14023

• Decision Date: 13 December 1977
• Docket Number: No. 14023,14023
• Citation: 161 W.Va. 30,239 S.E.2d 660
• Court: West Virginia Supreme Court
• Parties: STATE ex rel. Larry A. WINTER, Prosecuting Attorney, etc. v. A. Andrew MacQUEEN, Judge, etc., and Linda C. Payne.

Page 660

239 S.E.2d 660

161 W.Va. 30

STATE ex rel. Larry A. WINTER, Prosecuting Attorney, etc. v. A. Andrew MacQUEEN, Judge, etc., and Linda C. Payne.

No. 14023.

Supreme Court of Appeals of West Virginia.

Dec. 13, 1977.

Concurring Opinion Dec. 16, 1977.

Syllabus by the Court

1. Where a statute expressly provides that those "who have not been previously convicted of a felony within five years from the date of the felony for which they are charged . . . shall be eligible for probation . . . ", a judge is without authority to place one so convicted on probation and should he do so he has exceeded his legitimate powers.

2. Prohibition will lie to prohibit a judge from exceeding his legitimate powers.

3. Probation being a matter of grace, a legislative act precluding one from consideration therefor by reason of former felony convictions does not constitute cruel and unusual punishment, nor does it create a penalty disproportionate to the character or degree of the offense.

Larry A. Winter, pro se.

Charles E. Pettry, Jr., Charleston, for Payne.

CAPLAN, Chief Justice:

During the January Term, 1977, of the Circuit Court of Kanawha County the grand jury serving said court returned four indictments charging respondent Linda C. Payne with felony offenses involving forgery. On June 21, 1977 this respondent appeared before Judge Andrew MacQueen a respondent herein, and entered a plea of guilty to one of said indictments. In the course of the plea proceedings the then defendant Payne disclosed that she had been previously convicted of a felony within five years from the date of the felony to which she was then pleading. She was fully questioned by the court concerning her guilty plea and the voluntariness thereof is not in question.

The respondent, Judge MacQueen, accepted her plea of guilty, related to her that she could finish her summer session of college and continued the matter until September 1, 1977. During this proceeding she was fully apprised of her situation regarding probation and acknowledged that she knew she would not be eligible for probation if she had been convicted of a felony during the previous five years. She was continued on the same bond entered at the beginning of the case.

On September 1, 1977, Judge MacQueen, after relating to respondent Payne that he had discussed her case with the probation officer said: " . . . I am quite candidly going to go against the statutory law of this State and put you on probation for a period of four years." Thereupon the prosecuting attorney told the court that the defendant's plea was entered as a result of plea bargaining and that by reason thereof the state had dismissed certain charges against Miss Payne. He noted that he had not anticipated that the court would not follow the law and that had he known that she would be placed on probation the other charges would not have been dismissed. The prosecutor then asked for a stay of execution of the order placing Miss Payne on probation (to which order he had objected). The court granted a sixty day stay and this proceeding in prohibition was instituted in this Court.

In his petition filed in this Court the petitioner, Larry A. Winter, the Prosecuting Attorney of Kanawha County, alleged, inter alia, that respondent, Judge MacQueen, by reason of W.Va. Code 1931, 62-12-2, as amended, lacked jurisdiction to place Linda C. Payne on probation and that by doing so has exceeded his legitimate powers. He then prayed that Judge MacQueen be prohibited from placing the defendant on probation.

Where pertinent W.Va. Code, 1931, 62-12-2, as amended, reads:

All persons who have not been previously convicted of a felony within five years from the date of the felony for which they are charged, and who are found guilty of or plead guilty to any felony . . . shall be eligible for probation.

It is upon this language of the statute that the petitioner bases his contention that the respondent judge is without jurisdiction to act or that he had exceeded his legitimate powers.

It being undisputed, and, in fact readily acknowledged by Miss Payne, that she had been convicted of a felony within the previous five years, the above quoted statute clearly precludes probation consideration for her. By reason of that statute she plainly is not eligible for probation. The language being clear and unambiguous, said statute must be applied, not construed. Canyon Public Service District v. Tasa Coal Company, 156 W.Va. 606, 195 S.E.2d 647 (1973); Crockett v. Andrews, et al., 153 W.Va. 714, 172 S.E.2d 384 (1970).

The judge's discretion in the matter of probation in such a case has been proscribed by legislative fiat and, unless the statute is unconstitutional he is bound thereby. Consequently, by placing one on probation who has been convicted of a felony within the previous five years, the judge exceeded his legitimate powers. While he doubtless had jurisdiction over the offense, he lacked jurisdiction in this circumstance to place defendant Payne on probation.

Dispositive of this case is the following language of the Court in State v. Loy, 146 W.Va. 308, 119 S.E.2d 826 (1961), to which we adhere:

The authorities are clear that a defendant convicted of a crime has no absolute right to probation, probation being a matter of grace only, extended by the State to a defendant convicted of a crime, in certain circumstances and on certain conditions. Where a statute expressly provides as here, that a defendant convicted of an offense of a certain type or class shall not be entitled to probation, the trial court has no power to consider or grant probation. 24 C.J.S. Criminal Law, § 1571; 15 Am.Jur., Criminal Law, Section 498; 5 M.J., Criminal Procedure, Section 76, et seq.

We have considered respondent Payne's contention that the provisions of W.Va. Code, 1931, 62-12-2, as amended, are violative of the Eighth Amendment to the United states Constitution and of Article III, Section 5 of the West Virginia Constitution and find it to be without merit. Nor do the cases cited in her brief lend any support to her position.

Probation being a matter of grace, a legislative act precluding one from consideration therefor by reason of former felony convictions does not constitute cruel and unusual punishment, nor does it create a penalty disproportionate to the character or degree of the offense. The respondent judge, as well as all others, is charged with the responsibility of complying with the statutes enacted by our legislature and, as noted above, unless such statutes are constitutionally infirm, the mandates thereof must be obeyed. We find the pertinent statute to be constitutionally sound and that the respondent judge exceeded his legitimate powers when he went "against the statutory law of this State and put (her) on probation".

For the reasons stated herein, a writ is awarded prohibiting the respondent judge from placing Linda C. Payne on probation.

Writ awarded.

MILLER Justice, concurring:

Although I concur in the results of this decision, I do not believe the characterization of probation as being "a matter of grace" serves as an adequate basis for the finding that the respondent judge exceeded his legitimate powers by placing a defendant on probation in contravention of a statutory prohibition.

It is argued by Respondent Payne that to require judicial adherence to W.Va. Code, 62-12-2, in this case would constitute cruel and unusual punishment and would create a penalty disproportionate to the character or degree of the offense in violation of both the United States and the West Virginia Constitutions. The claimed violation of constitutional rights ought not to be denied merely by considering probation as "a matter of grace." We have, in Louk v....