State v. Short
| Decision Date | 28 October 1986 |
| Docket Number | No. 16888,16888 |
| Citation | 177 W.Va. 1,350 S.E.2d 1 |
| Court | West Virginia Supreme Court |
| Parties | STATE of West Virginia v. Clifton B. SHORT. |
Syllabus by the Court
A law which changes the punishment for a crime and inflicts a greater punishment than the law annexed to the crime when it was committed is an ex post facto law.
David R. Karr, Ravenswood, for appellant.
Kenneth Knopf, Asst. Atty. Gen., Charleston, for appellee.
This is an appeal of an October 15, 1984, order of the Circuit Court of Jackson County, retroactively applying the Victim Protection Act of 1984, and granting judgment against the appellant, Clifton B. Short, in favor of the State of West Virginia for and on behalf of the victims of Mr. Short's criminal enterprises, in the amount of $15,151.30. We find that the retroactive application of the 1984 act would constitute an ex post facto law and reluctantly reverse.
Mr. Short was one of numerous defendants involved in an auto theft ring. The ring was stealing vehicles and replacing the vehicle identification numbers with numbers from wrecked or junked vehicles and thereafter selling the vehicles, usually pickup trucks. Mr. Short, in addition to other activities, was providing the garage where much of the alteration was taking place.
When caught, Mr. Short decided to cooperate with the authorities and gave statements implicating other defendants. His testimony helped convict a number of his fellow operators. In exchange for his cooperation, the appellant was permitted to plead guilty to only one felony count of transferring stolen property and the remaining counts against him were dismissed.
Pursuant to his plea agreement, he was convicted on March 16, 1979, and was sentenced on August 3, 1979, to an indeterminate term of one-to-ten years in the penitentiary. After serving 59 days of his sentence, he was granted probation for a term of five years, effective October 15, 1979. One of the terms of his probation was that Mr. Short "shall make restitution to the victims of his criminal activity in an amount and in accordance with a schedule of payments later to be determined by this court."
Unfortunately, the record does not contain the order which set out the terms and conditions of the restitution. Nevertheless, from later pleadings and other documents most of the order can be retrieved. Mr. Short was required to make weekly restitution payments of $50.00. A series of documents were later filed which identified: the victims; the particular vehicles which had been stolen; the value of each vehicle; the total amount to be restored; and the proper percentage of each weekly payment to remit to each victim. In addition, Mr. Short was required to pay his court costs.
Mr. Short made regular payments, first at $50.00 per week and later at $100.00 per week, which the court found was the maximum he could afford to pay. The payments, however, were insufficient to pay the entire debt during the appellant's five-year probation period. On October 15, 1984, one day prior to the conclusion of Mr. Short's term of probation, the court held a hearing on the issue of the appellant's failure to fully discharge his restitution obligation. At the time there remained an unpaid balance of $15,151.30. In response to this problem the court granted judgment to the State on behalf of all victims of the appellant's offenses under the Victim Protection Act of 1984, Chapter 61, article 11A of the West Virginia Code.
The question on this appeal is whether the retroactive application of the Victim Protection Act of 1984 would constitute an ex post facto law in violation of the United States Const. art. 1, § 10 and West Virginia Const. art. III, § 4.
This Court, in State v. R.H., --- W.Va. ----, 273 S.E.2d 578 (1980), adopted the classic United States Supreme Court definition of an ex post facto law as set out by Justice Samuel Chase in Calder v. Bull, 3 U.S. (3 Dall.) 386, 1 L.Ed. 648 (1798). An ex post facto law is:
(1) Every law that makes an action done before the passing of the law, and which was innocent when done, criminal, and punishes such action; (2) every law that aggravates a crime, or makes it greater than it was when committed; (3) every law that...
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