*1 Dаnny Bruce Jett Superintendent, Bobby Leverette, Virginia Penitentiary West (No. 14118) September 19, Decided 1978. Schrader, Gurley, Stamp for Terence M. & Recht rela- tor.
Chauncey Browning, Attorney General, H. William D. Highland, Attorney General, respondent. Assistant Miller, Justice: original corpus proceeding relator,
In this habeas Danny Jett, challenges Bruce the denial of credit on his spent the time he sentence for on Jeopardy before its revocation. He contends Double Clause, III, Virginia Article Section 5 of the West Consti- tution, requires given that he be credit for such time. Heavy, total, placed if not reliance Conner Griffith, _ W. Va. __, There, we S.E.2d requires held our Double Clause credit on the apply a revoсation of We decline to Con probation.1 ner to
Despite
the fact
there
is a certain
amount
similarity
between
as noted in
Gagnon
Scarpelli,
778,
656,
v.
411 U.S.
36 L. Ed. 2d
93
(1973); Morrissey
Brewer,
471,
1756
v.
S.Ct.
408 U.S.
33 L.
484,
(1972);
Haynes, _
Ed. 2d
It also be admitted from a due process standpoint many that both are surrounded with procedural protections of the same their revoca- Gagnon Scarpelli, supra; Morrissey Brewer, tion. v. supra; Haynes, supra. Louk v.
Although is true that both goal, serve a rehabilitative are distinctions be- approaches.2 tween the two Parole is made available 1 Syllabus Jeopardy held in Point 1 that our Double Conner situations, applicable: Clаuse covered three of which the third was III, “The Double Clause in Article 5 of the West Section Virginia Constitution, provides immunity prosecution from further having jurisdiction acquitted court has the accused. It prosecution protects against a second for the same offense after prohibits multiple punishments conviction. It also for the samе offense.” 2 Murray, 347, 309, In L. Ed. United States 275 U.S. 48 S.Ct. (1928), spoke probation’s goal: Chief Justice Taft giving great young new “The desideratum was to viola- escape contaminating tors of law a chance to reform and to
only undergone the convicted defendant has im- prisonment demonstrated, through good conduct confinement, under a rehabilitative trеnd. Parole carries generally with it an initial of confinement. This is probation.3 absent from basically legislatively system
Parole
created
granting
power
branch,
normally
to the
executive
through
grand
an administrative
board of
to
con-
persons
ditional
release
incarcerated.4
Probation
legislative
designation
power
arises
from the
to the
judiciary
suspend
imposition
of sentence
place
liberty.
the individual
in conditional
Roberts v.
States,
41,
United
L.
U.S.
Ed.
This be accounted for the fact that judicial subject judicial is a act review. As this Court Haynes, supra: “Any pro stated in Louk v. conditiоn of bation, however, imposed which is in the discretion of [_ W. at _, the trial court must be reasonable.” Va. 223 S.E.2d at Parole is an executive function and 788] traditionally may limit a review of conditions to those that violate some fundamental or constitutional right. See, Freeman, 404 U.S. 30 L. e.g., Arciniega (1971); Hyland Ed. 2d F. Procunier, S.Ct. (N.D. 1970). Supp. 749 Cal. states, Virginia,
In West as other diffеrs from in that the is authorized to tailor the particular conditions to meet the needs of case,5 generally individual while conditions are uniformly by parolees.6 set board for all Code, 62-12-9: following “Release on shall be conditions: “(1) probationer not, during proba- That shall the term of his any any tion, state, violate law of this or other or оf the United States. “(2) not, probation, during That he the term of shall leave the placed proba- which State without the consent of the court him on tion. “(3) comply regulations pre- That he shall with rules by by scribed the court or the board of as the may be, supervision case for his officer. addition, may subject impose, “In the court to modificаtion at time, any any advisable, other conditions which it deem in- cluding following: but not limited to “(1) reparation, That he make restitution shall whole or part, immediately any party or within the *4 by injured the crime for which he has been convicted. “(2) pay any That he fine assessed and the costs of the shall may proceeding in court such installments as the dirеct. “(3) earnings, in That he shall make contributions from his such may direct, support dependents.” sums as the court for the of his Code, 62-12-17: following “Release on shall be the conditions:
opportunity for less restrictive conditions is therefore in than more available Moreover, under our statute maximum years term of five is set as the outer limit for relatiоnship time.7 This term has no direct required the of time amount the criminal Furthermore, can set for a shorter term but when the either maximum or served, the term longer shorter has been the court no jurisdiction probation. has to revoke This true even though may during pro- the violation have occurred the regardless length underly- bation term and ing Reel, criminal sentence. Va. State 152 W. (1969); Wood, S.E.2d rel. Render State ex 152 W.Va. (1968), grounds, overruled on other Haynes, supra, 787; Louk v. 223 S.E.2d at State ex rel. Melton, Va. Strickland 152 W. S.E.2d operates conjunction Parole is different in that separate with pe- criminal sentence.8 No by specified riod of the statute and in this “(1) parolee not, during period parole, That shall of his any any state, violate law of this other or of the United States. “(2) not, during period he That shall of his leave the without consent of the board. “(3) comply regulations pre- That he shall with the rules and supervision by pa- the board scribed for his role officer. addition, may impose, subject “In the board to modification at any any time, other which conditions the board deem advis- able.” Griffith, _, Va. _, See Conner v. W. 238 S.E.2d 532 n. as to uniform conditions. Code, 62-12-11, pertinent part: 7 W.Va. reads period together “The with extension thereof years.” shall not exceed five Code, 62-12-18, pertinent part: 8 W.Va. reads any sentence, “The shall be maximum of less good provided by law, deductions conduct and work аs for which paroled prisoner, release, subject impris- at the was onment under his definite or indeterminate as the case may be.” *5 parolee serving is out the remainder of his sense criminal sentence.9 probation pa-
A exists between and further distinction regard relationship underlying to their to the role probation statute, our criminal sentence. Under may impose suspend court either sentence and then its place probation, the defendant on or it execution may initially suspend imposition of the sentence probation.10 Obviously, place the defendant on situation, imposition there has been no latter sentence, underlying probation term is completely independent. that, imposition held where there is no
This Court has initially placed and the defendant has been sentence jurisdiction impose on the court is without probation complet- a criminal sentence once the term is ed, though probation even the conditions of have been during term. ex rel. Render violated State Wood, Melton, supra; supra. ex rel. Strickland Further, statutory exist between parole regard eligibility. Probation is not avail- person prior felony a who has a conviction with- able for felony years conviction. Nor in five of his current person if the is convicted of or available felony penalty pleads guilty for which the maximum to a imprisonment.11 parallel No such restrictions are is life imposed eligibility parole.12 on for 62-12-18, true, however, Code, possi that under W. Va. it is It is parolee discharged to have his sentence after ble for year except carrying all felonies those a life one for and, category, discharge possible as to this lаtter years parole. five Code, 62-12-3, part: provides in material W.Va. motion, may court, application suspend upon or of its own “[T]he imposition or execution of sentence and release the offender on provided probation for such conditions as are such article;...” by this Code, 62-12-2. 62-12-13, Code, there are restrictions as to the Under W.Va. portions eligibility based on service but no absolute bar to
Additionally, statutes make a re-eligibility. proba- as to On a distinction violation of tion, felony, if it is the commission of a revoked; otherwise, must be continue the right term. There is no to retain eligibility after its revocation.13 In the case possibility of a revocation there exists the of fur- eligibility parolee ther unless the has commit- *6 Code, 62-12-18, ted in certain crimes set out W.Va. while ineligible in which event “he shall be for fur- parole.” Code, ther W.Va. 61-12-19.
Conceptually, suggest these differences legislative flexibility parole intention to accord more revocation, which be accounted for the fact that underlying there is the criminal length parolee. which measures control the over By contrast, probation independent term is underlying criminal sentence. jurisdiction
Thus in there our are fundamental statu- tory probation between in the they relationship underlying bear to the criminal sen- tence. term of has no correlation to the sentence, underlying directly criminal while effect, tied to it. In is a there sentence which operates independently criminal recognized
Other
have
courts
that
is a
difference
between the
term and the
general
sentence. This has led
rule that
the fact
term exceeds the maximum term for the
crime does not
render
term
Lancer,
719,
invalid. United States v.
508
724
F.2d
n. 18
(3rd
1975);
States,
418,
Cir.
Driver v. United
232 F.2d
421-
(4th
1956);
States,
422
Mitchem v.
Cir.
United
147 (5th 1951); States, Cir. Hollandsworth v. 34 United F.2d (4th 423, 1929); Sumpter, 426-427 Cir. United States v. 287 (S.D. 608, F.Supp. 1968); State, Tex. Tiedeman (Alaska 1978); accord, People Tadla, P.2d 110 Ill. 119, 124, App. 2d 249 N.E.2d (10th Shead,
In
1978),
United States v.
Katzenbach, 383 U.S. 86 S.Ct.
L.Ed.2d 769.”
F.2d at
[568
684]
A
Fultz,
similar
result was reached in United
States
(8th
1973),
The critical differences between Conner and the ent case lie in the basic distinctions between not spoke We are unmindful that Conner of parole surrounding being the conditions as a restraint liberty. parallelism To this extent there is a between but аspect we cannot isolate this controlling. as jeopardy analysis concept that double
In the final the punishments is not a multiple for the same offense bars only of It not determination mere ritualism. involves offenses, inquiry into the but the sameness punishments congruent the to determine character of fact, Here, multiplícate. we are whether, is a separation term of persuaded coupled with the from significant between differences application jeop- not warrant of the double does ardy in Conner. rule contained
We, therefore, find that our State’s Double by to the time not violated the failure credit Clause is of probation upon its revocation. This writ ha- reasons, is, hereby foregoing denied. corpus for the beas
Writ denied. dissenting: Justice, McGraw, opinion respectfully majority from I dissent distinctions between the reason that draws material exist. Proba- where no tion, parole liber- and incarceration are restraints punishment ty1 imposed for crime. conditions of as Chapter found in 62 of the West or as fundamentally Virginia I acknowl- are same.2 Code technically not iden- edge probation and are granted prior any imprison- probation is tical because ‘liberty’ in the is not dwarfed “The term as used Constitution person physical into mere freedom from restraint right by incarceration, but is deemed to embraсe the as citizen enjoyment he faculties with which has man to be free in Creator, subject only his to such restraints as are endowed been necessary sense, Liberty, welfare. its as for the common broad only country, right not means the of freedom understood in restraint, right servitude, imprisonment of one but the from ways, will, where he in all lawful to live work use faculties any calling, pursue lawful and to earn his livelihood *8 Gillson, People v. N.Y. as lawful trade or avocation.” Barlow, 289, 292, quoted 77 W. in Va. 87 S.E. Lawrence (1915). majority opinion. 5 and 6 of See footnotes only part ment while commences of a sen- imprisonment tence of has been served. agree, however,
I cannot that the functional difference purposes between them are relevant of the un derlying principles Griffith, _ in established Conner (1977). Va. _, W. established, Conner purposes Jeopardy Clause, of this state’s Double W. Const., 3, § 5, Va. Art. signifi that involves such liberty cant restriction on individual it constitutes punishment. essentially Probation is the same as respect with to extent it restricts one’s individual liberty. majority opinion, The attempt which does not to distinguish respect, only in two serves to indi similarity. Indeed, cate their fundamental even re spondent proceeding pa confessed error in this because role and constitute similar restrictions liberty. individual says Court in
This Conner at 534 that: part increasing Our decision in trend apply federаl both state courts substan- jeopardy tive constitutional standards of double equal protection or to forbid the withdrawal spent custody in from the sen- tence.
Unquestionably spent time on in is “time cus- tody.” Court,
Earlier Conner at comments that: depend serving Time does not or on the manner location in which it is served. are, sure, degrees be There different con- recognized system. penal finement fact some confinements are less restrictive bearing computing no than others should have the time served on the sentence.
Furthermore, if is obvious that revoked, the time not served under less restrictive conditions will on the these count Shawyer, 154 W. Va. perceive why, It S.E.2d 25 is difficult if *9 no there is viola- time served counts where
tion, until the viоlation the same served not also count. should syllabus point Interestingly, majority in one of recognizes probation is case that instant government ordinary looks at an citizen When crime, he see punishment would as a which restrains unitary form, be- not distinctions those studied but judicial or other executive branches those tween clearly by lawyers and this Court. seen so distinctions sense, citizen, in common no distinc- There is to the imposed tion in the character restraint law, integrity, to maintain its should laymen. Laymen simply perplexed will be make sense ability legalistic to draw distinctions at the of this Court where no fundamental exist. lawyers, however, to know that will be reassured
Some ability to count the number of this still has Court pin. angels dance on the head of a can say my Harshbarger, I am authorized brother dissent, says Amen. Virginia West David Leonard Adams (No. 13854) September 26, Decided 1978.