State v. Reel, 12757

• Decision Date: 25 February 1969
• Docket Number: No. 12757,12757
• Citation: 165 S.E.2d 813,152 W.Va. 646
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia v. Ronald Lee REEL. Case

Page 813

165 S.E.2d 813

152 W.Va. 646

STATE of West Virginia v. Ronald Lee REEL.

Case No. 12757.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 28, 1969.

Decided Feb. 25, 1969.

Syllabus by the Court

1. 'Statutes relating to the same subject, regardless of the time of their enactment and whether the later statute refers to the former statute, are to be read and construed together and considered as a single statute the parts of which had been enacted at the same time.' Point 1, syllabus, Delardas v. Morgantown Water Commission, 148 W.Va. 776, (137 S.E.2d 426).

2. The court which grants probation to a youthful male defendant between the ages of sixteen years and twenty-one years, who at all times during the period of probation was within the jurisdiction of the court, and which probation was not for any specified period of time and was not revoked during a period of five years, is without jurisdiction to impose a sentence of imprisonment after the expiration of five years from the date such defendant was placed on probation; the action of the court in imposing such sentence is void; and such judgment will be reversed and set aside on writ of error; and the defendant will be released from such imprisonment.

VanMeter & VanMeter, John G. VanMeter, K. C. VanMeter, Jr., Petersburg, for plaintiff in error.

Chauncey H. Browning, Jr., Atty. Gen., Leo Catsonis, Asst. Atty. Gen., for defendant in error.

HAYMOND, President.

On November 7, 1961, during the regular November term of the Circuit Court of Grant County, the grand jury attending that court returned three indictments against the defendant, Ronald Lee Reel, whose age was more than sixteen years but less than twenty-one years, each of which charged him with the crime of breaking the entering. On the following day the defendant appeared in court in person and by his court appointed counsel and upon his arraignment entered his plea of guilty to each indictment. After accepting the plea in each case the court deferred the imposition of sentence until November 17, 1961, at which time the court committed the defendant to the custody of the State Commissioner of Public Institutions, with directions that the defendant be committed to the forestry camp, near Davis, West Virginia, for a period of one year, such commitment to run concurrently with the commitments upon the other indictments and that upon his release from the forestry camp the defendant should appear before the court for probation and parol upon such terms and conditions as the court should at that time impose.

On September 11, 1962, after the defendant had been released because of his good conduct during his confinement at the forestry camp, he was placed on temporary probation in each case and directed to appear before the court in November 1962 for determination by the court at that time of the final terms and provisions of the probation granted the defendant in lieu of or in addition to certain terms of probation which had been previously imposed by the court.

Subsequently, on November 5, 1962, December 9, 1963, April 17, 1964, July 14, 1964, November 4, 1964, April 15, 1965 and November 21, 1967, the defendant appeared in court, as directed, but upon each appearance the court continued each case and held no further hearing with respect to the probation of the defendant or the determination of the terms and provisions of such probation and imposed no additional sentence on each indictment until November 29, 1967 which was more than five years and two months after the defendant had been placed on probation on September 11, 1962. On November 29, 1967, it appearing that the defendant had committed numerous violations of his probation, the circuit court, by order of that date upon each indictment after a hearing at which the defendant was present in person and by counsel, revoked the probation previously granted the defendant and sentenced him upon each indictment to be confined in the penitentiary of this State for not less than one year or more than ten years and provided that such sentences should be concurrent and that the defendant should be given credit upon each sentence for the period of his confinement at the forestry camp; and the defendant was remanded to the custody of the sheriff of Grant County for transfer to the penitentiary of this State, where he is now confined pursuant to the sentence imposed upon each indictment on November 29, 1967.

The circuit court treated the prosecutions of the defendant on the three indictments as a single case and they were consolidated and heard together without objection by any party. Upon the application of the defendant, which alleges that the three separate indictments were treated together and as a unit by the circuit court and should be so considered in this Court, a writ of error and supersedeas was granted on July 15, 1968.

By written stipulation of the attorneys representing the State and the defendant, it is agreed that the writ of error and supersedeas granted by this Court should extend and apply to the final judgment upon each indictment and that the three separate indictments should be dealt with and considered together and as a single proceeding in this Court.

The defendant assigns as reversible error the action of the circuit court in imposing sentence of confinement in the penitentiary more than five years after the defendant was placed on temporary probation on September 11, 1962 and asserts that the circuit court was without jurisdiction to impose such sentence after the expiration of five years from the time such probation was granted the defendant and that the action of the circuit court in so sentencing the defendant upon each indictment was void and of no effect.

On the contrary it is contended in behalf of the State of West Virginia that the applicable statute, Section 6, Article 4, Chapter 25, Code, 1931, as amended, relating to a male defendant who has attained his sixteenth birthday but has not reached his twenty-first birthday, under which the defendant was placed on probation and dealt with by the circuit court, imposes no time limit upon the period of probation that may be granted by the court in such case and that the circuit court, under that statute, had jurisdiction to revoke the probation granted the defendant and to sentence him to confinement in the penitentiary of this State on November 29, 1967, after the expiration of five years from September 11, 1962 when probation was granted and that the sentence on each indictment is authorized by law and is valid.

In the decision of the controlling question whether the circuit court, after the expiration of five years from the date the defendant was placed on probation, had jurisdiction to revoke the probation and sentence the defendant to confinement in the penitentiary, it is necessary to consider the effect of the applicable statutes and whether, under such statutes, the foregoing action of the circuit court was valid.

Section 11, Article 12, Chapter 62, Code, 1931, as amended, the general probation statute enacted in 1939, provides, in part, that 'The period of probation together with any extension thereof shall not exceed five years.' Section 6, Article 4, Chapter 25, Code, 1931, as amended, relating to the probation of any male youth convicted of or pleading guilty to a criminal offense other than a capital offense who has attained his sixteenth birthday but has not reached his twenty-first birthday at the time of the commission of the crime and which is the statute under which the...