These appeals originated in the Circuit Court of Calhoun County, West Virginia, where the defendants, Orville Ray Yoak and Roger D. Hardman, were convicted of third offense driving under the influence of alcohol (DUI) and were subsequently sеntenced to spend time in the penitentiary. Both defendants petitioned the circuit court for alternative sentencing; however, the court determined it did not have jurisdiction to consider home incarceration as a possible sentence for a defendant convicted of third offense driving under the influence of alcohol. On appeal, the cases were consolidated and the petitions were granted by this Court solely on the issue of whether the circuit court had authority to consider as a possible sentence the alternative sentence of home incarceration. 1 We believe the statute as it is presently written givеs judges the option to consider alternative sentencing; therefore, we remand the cases back to the Circuit Court of Calhoun County.
I.
Orville Ray Yoak was convicted by a jury of third offense driving under the influence of alcohol. Yoak was sentenced to one to three years in the state penitentiary. He moved for reduction of sentence, which was denied. Yoak then requested a pre-sentence investigation report and moved for alternative incarceration in the form of home confinement. The sentencing court denied both, based upon its belief that: (1) probation was not available to Yoak, and therefore a pre-sen-tence investigation report was unnecessary, and (2) the court had no discretion to consider home confinement when driving under the influence of alcohol reached the felony stage. On March 26, 1997, the court enterеd an order denying post-trial relief. It is from this order that Yoak appeals.
II.
Roger D. Hardman was convicted by a jury of third offense driving under the influence of alcohol and second offense driving with license revoked for driving undеr the influence of alcohol. Hardman moved for a pre-sentence investigation, which the court denied, stating that the record enabled the court to “meaningfully exercise its sentencing *333 authority.” Hardman was sentеnced to one to three years in the penitentiary and ordered to pay a fine of $1,000 for third offense driving under the influence of alcohol, and he was sentenced to one year in jail for driving on a revoked liсense, with the sentences to run concurrently.
Hardman moved for an alternative sentence of home confinement. The circuit court denied the motion, stating, “I don’t believe that I’ve got the authority to consider home confinement at this point as an alternative sentence when you reach the felony stage in this.” Hardman subsequently made a motion to reduce the sentence, which the court denied on March 27, 1997. It is from this order thаt Hardman appeals.
III.
The issue on appeal is whether a circuit court has the authority to impose an alternative sentence of home confinement pursuant to W.Va.Code § 17C-5-2(p) (1996) when an offender hаs been convicted of third offense driving under the influence of alcohol. We previously said, ‘Where the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a
de novo
standard of review.” Syllabus Point 1,
Chrystal R.M. v. Charlie A.L.,
The appellants state that
State ex rel. Moomau v. Hamilton,
We begin by interjecting a history of the amendments to the statute which is controlling in this case. The 1986 version of W.Va. Code § 17C-5-2 states in pertinent part:
(i) A person violating any provision of subsection (b), (c), (d), (e), (f) or (g) of this section shall, for the third or any subsequent offense under this section, be guilty of a felony, and, upon conviction thereof, shall be imprisoned in the penitentiary for not less than one nor more than three yeаrs, and the court may, in its discretion, impose a fine of not less than three thousand dollars nor more than five thousand dollars.
(m) The sentences provided herein upon conviction for a violation of this article arе mandatory and shall not be subject to suspension or probation: Provided, That the court may apply the provisions of article eleven-a [§ 62-11A-1 et seq.], chapter sixty-two of this code to a person sentenсed or committed to a term of one year or less.
W.Va.Code § 17C-5-2 was amended in 1994 and W.Va.Code § 17C-5-2© became W.Va.Code § 17C-5-2(j). In 1996, that section was designated as W.Va.Code § 17C-5-2(k) and reads as follows:
(k) A person violating any prоvision of subsection (b), (c), (d), (e), (f), (g), or (i) of this section shall, for the third or any subsequent offense under this section, be guilty of a felony, and, upon conviction thereof, shall be imprisoned in the penitentiary for not less than one nor more than three years, and the court may, in its discretion, impose a fine of not less than three thousand dollars nor more than five thousand dollars.
The 1986 version of W.Va.Code § 17C-5-2(m) was amended in 1994 and was then designated as W.Va.Code § 17C-5-2(o), which reads as follows:
(o) The sentences provided herein upon conviction for a violation of this article are mandatory and shall not be subject to suspension or probation: Provided, That the cоurt may apply the provisions of article eleven-a, [§ 62-11A-1 et seq.], chapter sixty-two of this code to a person sentenced *334 or committed to a term of one year or less. An order for home detention by the court pursuant to the provisions of article eleven-b, [§ 62-UB-l et seq.], chapter sixty-two of this code may be used as an alternative sentence to any period of incarceration required by this section. (Emphasis added).
Pursuant to the 1996 amendments, that section is now designated as W.Vа.Code § 17C-5-2(p).
In
State ex rel. Hagg v. Spillers,
When an individual is convicted of third-offense driving under the influence of alcohol, the term of imprisonment set out in W.Va.Codе, 17C-5-2(i) of confinement in the penitentiary for not less than one nor more than three years is mandatory and is not subject to probation.
Syllabus Point 2,
State ex rel. Hagg v. Spillers, id.
This Court applied the “plain legislative command” of the statute and restricted sеntencing to a term in the penitentiary without the possibility of alternative sentencing, such as probation.
Id.
at 389,
This Court reaffirmed
Hagg
in a
per cu-riam
opinion,
State ex rel. Moomau v. Hamilton,
The legislature’s 1994 amendments to the DUI sentencing statute superseded the Moo-mau decision. The last sentence in the pertinent subsection states: “An order for home detention by the сourt pursuant to the provisions of article eleven-b [§ 62-1 IB-1 et seq.], chapter sixty-two of this code may be used as an alternative sentence to any period of incarceration required by this section.” W.Va. Code § 17C-5-2(o) (1994) (emphasis added). 2 The amended statute specifically permits judges to consider home incarceration as an alternative sentencing option for any period of incarceration set out in W.Va.Code § 17C-5-2.
It' is clearly apparent the legislature, by adding this sentence, has effectively overruled the result in Hagg and Moomau. By virtue of the amendment to the statute, circuit courts are now permitted to consider the alternative sentence of home incarceration for persons convicted of third offense driving under thе influence of alcohol. Moreover, under the Home Incarceration Act, W.Va. Code § 62-11B-1 et seq., “as an alternative sentence to another form of incarceration for any criminal violation of this code over which a circuit court has jurisdiction, a circuit court may order an offender confined to the offender’s home for a period of home incarceration.” W.Va.Code § 62-llB^l(a), in part (1994). Furthermore, “[h]ome incarceration shall not be available as a sentence if the language of a criminal statute expressly prohibits its application.” W.Va.Code § 62-llB-6(e) (1994). Not only does W.Va.Code § 17C-5-2(p) (1996) not preclude considеration of home confinement, it expressly provides for consideration of home confinement as an alternative sentence for offenders who have been convicted pursuant to this code section, including those guilty of felony third offense driving under the influence of alcohol.
*335 Therefore, we hold that W.Va.Code § 17C-5-2(p) (1996) gives circuit courts the option to consider an alternative sentence of home incarсeration under W.Va.Code § 62-11B-1 et seq. when an individual has been convicted of third offense driving under the influence of alcohol under W.Va.Code § 17C-5-2(k) (1996).
However, it should be strongly emphasized that this legislative option is just that, only an option, аnd it is not binding or mandatory. The statute simply provides circuit judges with discretion to consider whether home confinement as an alternative sentence might be warranted in a given ease.
In the eases presently beforе us, the judge determined he did not have authority to consider home confinement as a possible sentence. It is appropriate and wise that circuit judges have broad power and discretion in deciding all mattеrs related to criminal sentencing. The judgment on the issue of whether to grant home confinement or not properly rests in the sound discretion of the trial judge, as it should. Consequently, we do not reverse the circuit court’s decisions, but merely remand the cases for the court to reconsider the sentences in light of this opinion.
Remanded.