54 S.E.2d 563 | W. Va. | 1949
Lead Opinion
Jay Watts prosecutes error to a judgment of the Circuit Court of Marshall County in a habeas corpus proceeding in which he was petitioner and Orel J. Skeen, Warden of the West Virginia Penitentiary, was respondent. On the hearing in the circuit court the respondent's motion to quash was sustained, the petition dismissed and petitioner remanded to the custody of respondent.
The petition in habeas corpus, sworn to on September 11, 1948, charges that the petitioner had been indicted in the Common Pleas Court of Cabell County for (1) breaking and entering, (2) entering without breaking, and (3) the larceny of certain goods, chattels and property of one H. H. Ashmore; that when the case was called a plea of "not guilty" was entered to the count of breaking and entering; that issue was joined thereon; that after hearing the evidence the jury returned a verdict of "guilty as charged in the second count of this indictment"; that later an indeterminate sentence of from one to ten years, to begin on October 28, 1940, was entered; that defendant expressing a desire to apply to the circuit court for a writ of error and supersedeas moved for a stay of execution; and that later Watts appeared and announced that he did not care to further prosecute his appeal and submitted himself to the jurisdiction and custody of the court to answer the sentence theretofore imposed.
It is further charged in the foregoing petition that on June 26, 1944, petitioner was paroled; that thereafter he spent some time in war work in Detroit; that after the war he returned to Huntington, where, on August 20, 1946, he was arrested on a charge of drunkenness; that because of such offense, the director of probation and parole, on October 28, 1946, revoked the parole whereupon the petitioner was recommitted to the penitentiary; that since *740 his recommitment, the said Skeen, Warden, unlawfully took 281 days of good time away from petitioner, and, on the recommendation of the director of probation and parole, added an additional year to his prison term. Petitioner further alleges that had he been granted good time for the time prior to his parole, during parole and since revocation of his parole, that he should have been discharged not later than July 14, 1947.
The Warden, in his answer, avers that the sentence was not void, but merely erroneous; and, further, that he has computed the time that petitioner has to serve in accordance with the statutes; and that on such computation the discharge date is not as that alleged in the petition for habeas corpus.
The petitioner, the warden, and Mr. Wells, clerk of the penitentiary, testified in the proceeding. And from the evidence adduced it appears that the petitioner, prior to the time of his parole, was earning not only ten days per month under Code,
According to Mr. Wells "The parole director recommended that Watts lose all good time while on parole plus one year. All good time on parole amounted to 281 days. One year, of course, is 365 days which actually made a total of 646 days good time lost. Now, under the procedure at that time Jay Watts' original expiration date was July 14, 1947. Extra outside time that he had earned amounted to two months and one day, which made his new expiration date May 13, 1947, plus 646 days good time lost that the parole director recommended that he lose." This witness stated that prior to October, 1947, the petitioner was being retained in the penitentiary under the foregoing recommendation; that in October aforesaid a ruling from the attorney general's office established the *741 procedure to be followed; that that ruling, as it applied to petitioner's case, in witness' own langauge was that "the good time that he [petitioner] had earned prior to parole was not to be allowed — the time from the date of his parole until the date of revocation was not to be allowed as any part of his sentence, and under that ruling is how this new expiration date [May 20, 1950] is arrived at." Watts' theory, according to Wells, was "that a man on parole was serving time just the same as if he was in the penitentiary, and that applied and counted on his sentence."
Was the action of the trial court in entering judgment on the jury's finding of "guilty as charged in the second count of this indictment", i.e., entering without breaking, a violation of the due process clauses of both the Federal and State Constitutions? In other words, was the judgment a nullity? Code,
Has the petitioner shown, as of the date of his petition, that he had fully satisfied his sentence, and therefore entitled to release? To determine this issue it becomes necessary to consider the statutes involved.
Code,
A parole granted prior to the enactment of our present statute (1939) relating to probation and parole did not operate as a suspension of the sentence but simply as a permit "to go without the inclosure of the penitentiary", and while so at large the parolee was "deemed to be serving out the sentence imposed upon him by the court, and * * * entitled to good time the same as if he were confined in the penitentiary." Code, 28-5-28, repealed by Acts, 1939, c. 27, Sec. 21.
In addition to repealing Code, 28-5-28, mentioned in the proceeding paragraph, and Code,
Attention is called to sections 18 and 19 of Article 12, Chapter 27, Acts of the 1939 West Virginia Legislature:
"Sec. 18. Period of Parole. The period of parole shall in all cases be the maximum period *743 for which, at the time of his release, the parolee was subject to imprisonment under his sentence.
"Sec. 19. Violation of Parole; Revocation and Arrest. * * * [that if a party has violated his parole] the director may revoke * * * and may require him to serve in prison the whole or any part of the maximum period for which, at the time of his release, he was subject to imprisonment under his sentence: * * *"
In the Acts of the West Virginia Legislature, 1943, Chapter 32, passed March 13, 1943, in effect ninety days from passage, Section 18 above was amended and reenacted to read:
"The period of parole shall in all cases be the maximum period for which, at the time of his release, the parolee was subject to imprisonment under his definite term or general sentence, as the case may be, but at any time after the expiration of his definite term or general sentence, less time deductions for good conduct and work as provided by law for inmates of the penitentiary, the director of probation and parole may, when in his judgment the ends of parole have been attained, release the parolee from further supervision and discharge him from parole, whereupon the term or sentence imposed shall be fully completed and satisfied."
It is apparent that under Sections 18 and 19, as presently constituted, that a parole now operates as a suspenison of the parolee's sentence and that the liberty so granted is no longer part of the sentence. On a violation of the terms of the parole under the new statute the convict may be compelled to serve the full unexpired portion of the term as of the date of his parole. A breach of the terms of the parole is ground for terminating the same and recommitting the offender to the penitentiary.
It is clear that the "good time" under Code,
But, does breach and revocation of parole deprive parolee of "good time", potential or otherwise, to which, at time of parole, he may have been entitled against his sentence? Respondent takes the position that the provision in Section 19, to the effect that the director, upon revocation of the parole, "may require" the parolee "to serve in prison the whole or any part of the maximum period for which, at the time of his release, he was subject to imprisonment under his sentence" authorizes the cancellation of "good time" earned prior to parole.
The general rule appears to be that in the absence of statutory authorization the revocation of a parole does not operate as a forfeiture of any "good time" earned prior to the granting of the parole. 46 C. J. 1211, Sec. 82. The return of the parolee, after revocation of his parole, to the penitentiary to complete the unserved portion of his sentence is, under the express language of Section 19, in our opinion, subject to any potential good time earned prior to parole. See Chapter 24, Acts of the 1939 West Virginia Legislature, relating to the term of imprisonment for felony. The above-mentioned section is silent in regard to forfeiture of good time. The parolee having violated the terms of his parole, said Section 19 became operative, and he must be required "to serve in prison the whole or any part of the maximum period for which, at the time of his *745 release, he was subject to imprisonment under his sentence." (Italics supplied.) Therefore, we hold that the director had no authority to cancel "good time" prior to parole or to cancel "good time" to be earned by adding one year to petitioner's term. The petitioner, having been returned to the penitentiary to complete the unserved portion of his maximum sentence (Secs. 18 and 19, Chap. 27, Acts of the 1939 West Virginia Legislature) is entitled to have all "good time" and "extra good time" (Code,
If we take the termination date of May 20, 1950, arrived at by Mr. Wells under the attorney general's ruling, and deduct the potential good time which petitioner had before he went on parole, and which we say should be credited against his sentence, the termination date would be cut back into the first half of 1949. However, the petitioner not having made a showing of sufficient good time for discharge under his petition of September 11, 1948, was not entitled on the record to release. The judgment of the circuit court discharging the writ must, therefore, be affirmed.
Judgment Affirmed.
Concurrence Opinion
The indictment in this matter is in three counts: (1) Breaking and entering with the intention of committing larceny; (2) entering without breaking for that purpose; and (3) simple grand larceny. Upon being arraigned, the defendant entered his plea of "not guilty of breaking and entering as charged in the within indictment." Since the first count is the only one in the indictment which charges unlawful breaking and entering, the accused's plea put in issue the material facts charged against him in that count alone. There is no issue joined on either count 2 or count 3. Consequently, the State went to trial only on count 1, and *746 it was therefore error for the trial court to accept a verdict of guilty on count 2 only. The issue made up was whether the accused both broke and entered: not whether he entered without breaking.
Code,
I agree that although the record showing constituted reversible error, it did not void the sentence, and hence does not entitle the petitioner to a write of habeas corpus. *747