State v. Goff, 14898
| Decision Date | 17 November 1981 |
| Docket Number | No. 14898,14898 |
| Citation | 168 W.Va. 285,284 S.E.2d 362 |
| Parties | STATE of West Virginia v. Roy GOFF. |
| Court | West Virginia Supreme Court |
Syllabus by the Court
"In determining whether a preliminary hearing for an alleged probation violation has been held without unreasonable delay, three factors should be considered: (1) the length of and reason for the delay; (2) the probationer's assertion of his right; and, (3) the prejudice to the defendant." Syllabus Point 1, State ex rel. Ostrander v. Wilt, W.Va., 262 S.E.2d 420 (1980).
Gerald Merceruio, Webster Springs, for appellant.
Chauncey H. Browning, Jr., Atty. Gen. and Dana Davis, Asst. Atty. Gen., Charleston, for appellee.
Roy Goff appeals from an order of the Circuit Court of Webster County revoking his probation contending the circuit court erred in not granting him a preliminary probation revocation hearing and further that the court's order insufficiently stated the facts upon which its decision was based. We disagree and affirm.
Goff originally entered a plea of guilty on a charge of unlawful wounding, and the higher charge of malicious wounding was dropped. He was placed on three years probation on July 11, 1977. The terms of Goff's probation, inter alia, required that he obey all municipal state, and federal laws for the duration of his three year probation. While on probation in 1978 Goff was twice convicted of public intoxication and once convicted of reckless driving. None of these convictions were appealed.
In November of 1978, the State filed a petition to revoke probation and to execute Goff's sentence. Probationer was notified and did appear at a hearing on this petition held November 27, 1978. At that hearing the court appointed counsel for the probationer, and set December 1, 1978 as the date for a final hearing. Goff was released on $500 bond, pending final hearing. The parties agree that no hearing was held on December 1, and that no reason for the absence of a hearing appears in the record.
On January 4, 1979, counsel appointed for probationer appeared before the circuit court and requested that, due to a conflicting interest, he be allowed to withdraw. The court granted this request, and appointed new counsel, who represented Goff thereafter.
No further action was taken in this matter until September 10, 1979, when a final hearing was held. After this hearing, a final order executing sentence was entered, and this appeal followed. We turn now to defendant's assignments of error.
The test for the effect of denial of a preliminary hearing in a probation revocation proceeding was set forth in Ostrander v. Wilt, W.Va., 262 S.E.2d 420 (1980), and has been reiterated recently in State v. Dawson, W.Va., 282 S.E.2d 284 (1981). We employ a balancing test:
"In determining whether a preliminary hearing for an alleged probation violation has been held without unreasonable delay, three factors should be...
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State v. Holcomb
...it will not be reversed." [Citations omitted.] State v. Dawson, 168 W.Va. 101, 282 S.E.2d 284, 286 (1981). See also State v. Goff, 168 W.Va. 285, 284 S.E.2d 362 (1981). In other words, in the absence of a showing of prejudice to the substantial rights of the probationer, an order revoking p......