State ex rel. Wright v. Boles

Decision Date23 March 1965
Docket NumberNo. 12420,12420
Citation149 W.Va. 371,141 S.E.2d 76
PartiesSTATE ex rel. David WRIGHT v. Otto C. BOLES, Warden, W. Va. Penitentiary.
CourtWest Virginia Supreme Court

Syllabus by the Court

1. Under the provisions of Code, 51-7-7, as amended, there is no duty on the part of the state to furnish to the accused a transcript of the testimony and proceedings of a trial where the accused has entered a plea of guilty.

2. An appeal ordinarily does not lie in a criminal case from a judgment of conviction rendered upon a plea of guilty.

John T. Kay, Jr., Charleston, for relator.

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

BROWNING, President:

Petitioner, David Wright, filed his application for a writ of habeas corpus ad subjiciendum in this Court on January 9, 1965, alleging that: he 'was found guilty' in the Circuit Court of Hampshire County and on May 4, 1964, was sentenced to one to ten years imprisonment in the penitentiary of this state; he thereafter filed a request with the court to furnish him with a copy of his 'trial transcript' in order to appeal, which request the court granted and ordered the court reporter to supply him with a transcript; and, the court reporter failed to furnish such transcript thus depriving him of his right of appeal and of the equal protection of the laws as guaranteed by the constitution of this state and of the United States. Filed as an exhibit with the petition is a copy of an order entered by the Circuit Court of Hampshire County on September 1, 1964, directing the court reporter to prepare and forward to petitioner a copy of the proceedings and evidence in the case.

This Court granted the writ sought, returnable February 23, 1965, and appointed counsel to represent him before this Court. On the return day, the respondent appeared by counsel, pursuant to the writ, made his return and demurred to the writ on the ground that an appeal ordinarily does not lie from a judgment entered on a plea of guilty and therefore, noncompliance with the court order directing preparation of a transcript, an impossibility, does not constitute a denial of due process or of equal protection of the laws.

Respondent's return avers that: petitioner was indicted by the grand jury attending the April, 1964, term of the Circuit Court of Hampshire County on two indictments containing a total of five counts; petitioner was arraigned, entered pleas of not guilty as to four counts, pleading guilty to the fifth, entering without breaking, and thereafter, on his motion, sentence was deferred pending a hearing on petitioner's eligibility for probation; on May 4, 1964, a hearing was held and evidence presented concerning petitioner's qualifications for probation, after which the court overruled petitioner's application for probation and sentenced him to a term of one to ten years; court orders reflect that petitioner was represented by counsel at his arraignment and at the probationary hearing; and, on September 1, 1964, the Circuit Court of Hampshire County, on application of petitioner, directed the court reporter to furnish petitioner with a copy of the transcript of 'the proceedings and evidence in this matter'. The return then avers that it was impossible for the court reporter to comply with this order for the reason that no written notes of the proceedings were made and concludes that petitioner is lawfully detained. Attached to the return as an exhibit is an affidavit by Verdie E. Teets, official court reporter for the Circuit Court of Hampshire County, to the effect that no transcript was supplied to the petitioner 'because the defendant plead guilty and no evidence was taken down in the case, and the parole (sic) hearing was conducted informally before the Court and no testimony was required to be taken down. * * *'

The above mentioned averrals of the return are stipulated as true by counsel for both parties herein in addition to the fact that no transcript has been furnished to petitioner.

This is not a direct attack upon the judgment of the Circuit Court of Hampshire County of May 4, 1964, sentencing petitioner to imprisonment for an indeterminate period of one to ten years for the felony offense of entering without breaking a building of another, inasmuch as his petition was not filed in this Court until January 9, 1965, more than eight months after entry of the judgment complained of. However, he attacks that judgment collaterally in this proceeding in habeas corpus upon the ground that it is void because he was deprived of a constitutional right to apply to this Court for a writ of error within the statutory period due to the failure of the court reporter to furnish him with a 'trial transcript' without cost inasmuch as he was an indigent person. This Court exists and functions only by virtue of the Constitution and Acts of the Legislature of West Virginia. Article VIII, Section 6, of the Constitution provides: 'A writ of error, supersedeas, or appeal shall be allowed only by the supreme court of appeals, or a judge thereof, upon a petition assigning error in the judgment or proceedings of the inferior court and then only after said court or judge shall have examined and considered the record and assignment of errors, and is satisfied there is error in the same, or that it presents a point proper for the consideration of the supreme court of appeals.' (Italics supplied.) Thus it is clear from this language that a convicted defendant in a criminal case may not, as a matter of right, have his conviction reviewed by a writ of error.

Code, 58-5-1, as amended, provides insofar as pertinent:

'A party to a controversy in any circuit court may obtain from the supreme court of appeals, or a judge thereof in vacation, an appeal from, or writ of error or supersedeas to, a judgment, decree or order of such circuit court in the following cases:

* * *

* * *

'(j) In any criminal case where there has been a conviction in a circuit...

To continue reading

Request your trial
7 cases
  • State v. Sims
    • United States
    • West Virginia Supreme Court
    • 14 Noviembre 1978
    ...that this is a direct appeal from a sentence imposed on a guilty plea and that in the second syllabus of State ex rel. Wright v. Boles, 149 W.Va. 371, 141 S.E.2d 76 (1965), we "An appeal ordinarily does not lie in a criminal case from a judgment of conviction rendered upon a plea of guilty.......
  • Billotti v. Dodrill
    • United States
    • West Virginia Supreme Court
    • 9 Marzo 1990
    ...159 W.Va. 795, 226 S.E.2d 721 (1976); State ex rel. Bratcher v. Cooke, 155 W.Va. 850, 188 S.E.2d 769 (1972); State ex rel. Wright v. Boles, 149 W.Va. 371, 141 S.E.2d 76 (1965); State v. Bosworth, 143 W.Va. 725, 105 S.E.2d 1 (1958); Linger v. Jennings, 143 W.Va. 57, 99 S.E.2d 740 (1957).8 Am......
  • State v. Moore
    • United States
    • West Virginia Supreme Court
    • 9 Diciembre 1980
    ...by the court, and a determination by the court on the issue of indigency rests within its sound discretion. State ex rel. Wright v. Boles, 149 W.Va. 371, 141 S.E.2d 76 (1965). State ex rel. Banach v. Boles, 147 W.Va. 850, 131 S.E.2d 722 (1963); State v. Bosworth, 143 W.Va. 725, 105 S.E.2d 1......
  • Call v. McKenzie
    • United States
    • West Virginia Supreme Court
    • 16 Diciembre 1975
    ...in a Habeas corpus proceeding to a free transcript of all relevant material of record in his case. The case of State ex rel. Wright v. Boles, 149 W.Va. 371, 141 S.E.2d 76 (1965) is overruled and we hold today that henceforth an indigent criminal defendant shall always be entitled, upon requ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT