Public-domain · open source
OpenJurist

149 W. Va. 263

State ex rel. Howell v. Boles

West Virginia Supreme Court

Decided February 23, 1965

West Virginia Supreme Court · decided 1965-02-23

Cited by 2 later decisions — most recently June 1965

2 state decisions

Relies on State v. Boles · 149 W. Va. 112 - State ex rel. Beckett v. Boles

Good law ✅— No negative treatment on recordhow we know

Decided 1965-02-23

View the full empirical analysis of this case →

Berry, Judge:

¶1The petitioner, Donald Howell, was indicted at the 1957 January Term of Court in Mingo County for the crime of breaking and entering. The trial court appointed an attorney to represent petitioner after which he pleaded guilty to the crime charged in the indictment, the sentence for such crime being one to ten years confinement in the penitentiary.

¶2After pleading guilty and before sentencing, an information was filed alleging a prior felony conviction to which the petitioner admitted being the same person involved in the prior conviction. Thereupon, without duly cautioning the petitioner, as required by Code, 61-11-18 and 19, as amended, the court proceeded to sentence him to one to fifteen years confinement in the penitentiary.

¶3The petitioner in this proceeding seeks relief from the additional five years sentence imposed upon him by the Circuit *264Court of Mingo County under the recidivist statute of this state. The added portion of the sentence, in excess of the maximum statutory sentence for the principal offense, is void for the reason that the trial court lacked jurisdiction to impose such additional sentence. State ex rel. Franklin H. Beckett v. Otto C. Boles, Warden, etc., 149 W. Va. 112, 138 S. E. 2d 851.

¶4The additional sentence of five years, imposed upon the petitioner, being void, cannot be enforced and relief from that portion of the sentence is granted under the writ heretofore awarded in this proceeding, and after the valid portion of his sentence has been served he should be released from confinement in the penitentiary. The valid portion of his sentence of one to ten years still being in effect the petitioner is remanded to the custody of the defendant until such valid sentence is satisfied.

¶5Prisoner remanded.

/149/wva/263 · .json · Public domain