State v. Hersman

• Decision Date: 28 March 1978
• Docket Number: No. 14066,14066
• Citation: 242 S.E.2d 559,161 W.Va. 371
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia v. Randall HERSMAN.

Page 559

242 S.E.2d 559

161 W.Va. 371

STATE of West Virginia v. Randall HERSMAN.

No. 14066.

Supreme Court of Appeals of West Virginia.

March 28, 1978.

Syllabus by the Court

1. "The Double Jeopardy Clause in Article III, Section 5 of the West Virginia Constitution, provides immunity from further prosecution where a court having jurisdiction has acquitted the accused. It protects against a second prosecution for the same offense after conviction. It also prohibits multiple punishments for the same offense." Syllabus Point 1, Conner v. Griffith, W.Va., 238 S.E.2d 529 (1977).

2. It is a violation of the Double Jeopardy Clause of the West Virginia Constitution, Article III, Section 5, to fail to credit the time served at a detention center under W.Va.Code, 25-4-6, when pursuant to this section a prisoner is found unfit to remain at a detention center, is returned to the court which committed him, and is sentenced for the crime for which he has been convicted.

Robert B. Black, Parkersburg, for Randall Hersman.

Chauncey H. Browning, Jr., Atty. Gen., Edward W. Gardner, Asst. Atty. Gen., Charleston, for the State.

MILLER, Justice:

This appeal involves the question of whether a person sentenced as a youthful male offender under W.Va.Code, 25-4-6, ¹ is constitutionally entitled to credit for time spent at a correctional center.

Petitioner, Randall Hersman, was indicted for possession of marijuana. On August 13, 1976, he entered a guilty plea and was sentenced by the Circuit Court of Wood County to the custody of the Commissioner of Corrections pursuant to W.Va.Code, 25-4-6. This section provides: "confinement in the center shall be for a period of six months, or longer if it is deemed advisable by the center superintendent, but in any event such period of confinement shall not exceed two years."

The record reflects that on October 18, 1976, petitioner arrived at the Davis Center, where he remained until June of 1977. By a letter dated June 22, 1977, the Superintendent of the Davis Center notified the Circuit Court that petitioner had successfully completed the program and recommended his "release and probation." The court subsequently entered an order directing the return of the petitioner.

Before the order could be implemented, however, the Circuit Court received a brief letter from the Superintendent, asking that the request in his letter of June 22, 1977, be cancelled and that "due to his behavior" petitioner was being transferred to the Anthony Center. The court, by an order dated June 29, 1977, rescinded its order directing the return of the petitioner.

Thereafter, on September 9, 1977, the court was apprised by the Superintendent of the Anthony Center that petitioner had been found unfit, and the request was made that he be returned to court.

This was done, and on September 19, 1977, the court sentenced the petitioner to 90 days in the Wood County Jail. ² The petitioner was not credited with the 343 days spent at the Davis and Anthony Centers, although he was given credit for the time spent in jail awaiting transport to the Centers and awaiting sentence by the court on his return from the Anthony Center.

The State points out that W.Va.Code, 25-4-6, specifically provides that where a person is found to be unfit at the center and returned to the court, it "may place him on probation or sentence him for the crime for which he has been convicted." If he is sentenced, "the judge may allow the defendant credit on his sentence for time he has spent in the center."

We acknowledge that this language has been in the statute since its enactment in 1955. This, however, does not answer the constitutional question of whether the failure to credit the time spent at the center is a violation of our Double Jeopardy Clause, which prohibits multiple punishments for the same offense. West Virginia Constitution, Article III, Section 5; Conner v. Griffith, W.Va., 238 S.E.2d 529 (1977).

In Conner, under similar language in W.Va.Code, 62-12-19, giving discretion to credit time spent on parole, we held the Double Jeopardy Clause required the credit to be given. Conner's rationale was that parole involved substantial restrictions on liberty, and therefore a parolee was serving his sentence while on parole.

Here, we have an even greater restriction on liberty, since a person sent to a center is under confinement. The State does not deny that the detention centers are penal in nature. The statute provides for a period of confinement of not less than six months nor more than two years.

If a prisoner is returned from the detention center and "given the sentence he would have originally received" on his underlying criminal conviction without credit for the time spent at the center, he will have been twice punished for the same offense a result specifically forbidden by our Double Jeopardy Clause. Conner v. Griffith, W.Va., 238 S.E.2d at 530.

Conner is not the only authority for this principle. The United States Supreme Court has mandated this result in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), when it held that the state is required under double jeopardy principles to credit time previously served on a sentence when a second sentence is imposed for the same offense. The controlling concept was the bar against multiple punishments for the same offense. See Vickers v. Haynes, 539 F.2d 1005 (4th Cir. 1976); Durkin v. Davis, 538 F.2d 1037 (4th Cir. 1976); Ham v. North Carolina, 471 F.2d 406 (4th Cir. 1973).

The State cites State v. Fuentes, 26 Ariz.App. 444, 549 P.2d 224 (1976), adopted without comment by the Supreme Court of Arizona in State v. Fuentes, 113 Ariz. 285, 551 P.2d 554 (1976). In Fuentes, the court held that time spent in jail as a condition of probation need not be credited when probation is revoked and a sentence imposed. The court seemed of the view that because the initial sentence was suspended the defendant's jail time was not the result of serving a sentence. A vigorous dissent was filed by the presiding judge, who maintained the Double Jeopardy Clause was violated, citing North Carolina v. Pearce, supra.

The Supreme Court of Florida has reached a result contrary...