State of WV v. White
Annotate this CaseSeptember 1992 Term
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No. 20962
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STATE OF WEST VIRGINIA
Plaintiff Below, Appellee,
v.
DAVID WHITE,
Defendant Below, Appellant
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Appeal from the Circuit Court of Mercer County
Honorable John Frazier, Circuit Judge
Criminal Action No. 90-F-182
Reversed and Remanded
______________________________________________
Submitted: September 16, 1992
Filed: December 17, 1992
Teresa A. Tarr
Senior Assistant Attorney General
Charleston, West Virginia
Counsel for Appellee
Thomas L. Berry
Johnston, Holroyd & Associates
Princeton, West Virginia
Counsel for Appellant
JUSTICE WORKMAN delivered the Opinion of the Court.
SYLLABUS BY THE COURT
1. "'"A statute should be so read and applied as to make it
accord with the spirit, purposes and objects of the general system
of law of which it is intended to form a part; it being presumed
that the legislators who drafted and passed it were familiar with
all existing law, applicable to the subject matter, whether
constitutional, statutory or common, and intended the statute to
harmonize completely with the same and aid in the effectuation of
the general purpose and design thereof, if its terms are consistent
therewith." Syllabus Point 5, State v. Snyder, 64 W. Va. 659, 63 S.E. 385 (1908).' Syl. pt. 1, State ex rel. Simpkins v. Harvey,
[172] W. Va. [312], 305 S.E.2d 268 (1983)." Syl. Pt. 3, Shell v.
Bechtold, 175 W. Va. 792, 338 S.E.2d 393 (1985).
2. "'In ascertaining legislative intent, effect must be given
to each part of the statute and to the statute as a whole so as to
accomplish the general purpose of the legislation." Syl. Pt. 2,
Smith v. State Workmen's Compensation Commissioner, 159 W. Va. 108,
219 S.E.2d 361 (1975)." Syl. Pt. 3, State ex rel. Fetters v. Hott,
173 W. Va. 502, 318 S.E.2d 446 (1984).
3. In sentencing an offender, a court may either sentence the individual to a period of incarceration or place the individual on probation. If the court wishes to probate with a period of incarceration as a condition of that probation, West Virginia Code § 62-12-9(4) (1991) must be followed.
Workman, Justice:
This is an appeal by David White from a June 25, 1991, order
of the Circuit Court of Mercer County which denied the Appellant's
motion for reconsideration and reduction of sentence. The
Appellant contends that the lower court erred in denying his motion
for reduction or reconsideration of his sentence. We agree and
remand this case to the Circuit Court of Mercer County with
directions to enter an order limiting the incarceration to the
period allowed by law under the terms of the sentencing order.
I.
On October 10, 1990, the Appellant was indicted by a Mercer
County grand jury on one count of malicious wounding pursuant to
West Virginia Code § 61-2-9 (1978). The Appellant subsequently
entered into a plea agreement in which he agreed to plead guilty to
the misdemeanor offense of battery, a violation of West Virginia
Code § 61-2-9(c). At a March 11, 1991, sentencing hearing, the
lower court sentenced the Appellant to one year in jail, suspended
a portion of that sentence, and placed the Appellant on five years
probation. The lower court's order of March 11, 1991, found that
the Appellant was not a fit and proper person for probation. That
order also provided that:
David White be taken from the bar of this
Court to the jail of this County and that he
be therein confined for a period of one (1)
year; it is further Ordered that execution of
Defendant's sentence be, and the said is
hereby suspended and the Defendant is hereby
placed on probation for a period of five (5)
years under the general conditions established
by law, along with the following specific
conditions:
1. That the Defendant serve five months
and twenty-nine days in the Mercer County
Jail;
2. That the Defendant make restitution
in the amount of $9,100.00.
3. That the Defendant perform 200 hours
public service work.
On May 5, 1991, counsel for the Appellant filed a motion for
reconsideration of sentence pursuant to West Virginia Rule of
Criminal Procedure 35(b), contending that the Appellant should have
received only a four-month jail sentence based upon the lower
court's order that the Appellant was to be incarcerated as a
condition of probation and upon West Virginia Code § 62-12-9(4)
(1991)See footnote 1 which, in pertinent part, provides as follows:
In addition, the court may impose,
subject to modification at any time, any other
conditions which it may deem advisable,
including, but not limited to, any of the
following . . .
. . . .
(4) That he [the probationer] shall, in
the discretion of the court, be required to
serve a period of confinement in the county
jail of the county in which he was convicted
for a period not to exceed one third of the
minimum sentence established by law or one
third of the least possible period of
confinement in an indeterminate sentence, but
in no case shall such period of confinement
exceed six consecutive months.
At a June 25, 1991, hearing, the lower court denied the
Appellant's motion for reconsideration, explaining that the
imposition of a five-month, twenty-nine day jail sentence was not
a "condition of probation" and was therefore not limited or
governed in any manner by West Virginia Code § 62-12-9(4). The
lower court apparently believed that the combination of
incarceration and probation would permit the probation period to
begin after the Appellant had served his jail sentence, treating
the incarceration and the probation as separate and distinct
punishments.See footnote 2 Although the lower court denied the Appellant's
motion for reconsideration, it did release the Appellant on a
$5,000 personal recognizance bond pending the outcome of this
appeal.
II.
Pursuant to West Virginia Code § 62-12-9(4), a trial court's
authority to impose a period of incarceration as a condition of
probation is clearly limited to one-third of the minimum jail
sentence. Prior to 1983, incarceration as a condition of probation
was prohibited. See Syl. Pt. 2, Spencer v. Whyte, 167 W. Va. 772,
280 S.E.2d 591 (1981). While incarceration as a condition of
probation is now permitted, its imposition is limited by West
Virginia Code § 62-12-9. In the present case, we recognize the
lower court's apparent attempt to draw a distinction between
incarceration with subsequent probation and incarceration as a
condition of probation. Pursuant to our interpretation of the
legislative time limitation regarding incarceration as a condition
of probation, however, we uphold the circuit court's sentencing
order, but reverse its action thereunder. In its sentencing order,
the lower court specifically stated that the Appellant was to be
"placed on probation for a period of five (5) years under the
general conditions established by law, along with the following
specific conditions: That, the Defendant serve five months and
twenty-nine days in the Mercer County Jail." (emphasis added).
While the intent of the lower court may have been to impose a period of incarceration separate and distinct from probation, the sentencing order reflects a period of incarceration as a condition of probation. Therefore, such sentence is subject to the limitations of West Virginia Code § 62-12-9(4). We find that the sentence of five months and twenty-nine days as a condition of the five-year probation violates the statutory limitation that a period of incarceration shall not exceed one-third of the minimum sentence established by law for the crime for which the individual was convicted. Id. In this instance, the battery statute provided for
"not more that twelve months" incarceration.See footnote 3 See W. Va. Code §
61-2-9(c). In our attempt to interpret the legislative intent of
the statutory language, we must acknowledge the legislature's
desire to curtail the discretion of a trial court in the imposition
of incarceration as a condition of probation.
In syllabus point 3 of Shell v. Bechtold, 175 W. Va. 792, 338 S.E.2d 393 (1985), we explained the following:
"'A statute should be so read and applied
as to make it accord with the spirit, purposes
and objects of the general system of law of
which it is intended to form a part; it being
presumed that the legislators who drafted and
passed it were familiar with all existing law,
applicable to the subject matter, whether
constitutional, statutory or common, and
intended the statute to harmonize completely
with the same and aid in the effectuation of
the general purpose and design thereof, if its
terms are consistent therewith.' Syllabus
Point 5, State v. Snyder, 64 W. Va. 659, 63 S.E. 385 (1908)." Syl. pt. 1, State ex rel.
Simpkins v. Harvey, [172] W. Va. [312], 305 S.E.2d 268 (1983).
We have also explained that "'[i]n ascertaining legislative intent,
effect must be given to each part of the statute and to the statute
as a whole so as to accomplish the general purpose of the
legislation.' Syl. Pt. 2, Smith v. State Workmen's Compensation
Commissioner, 159 W. Va. 108, 219 S.E.2d 361 (1975)." Syl. Pt. 3,
State ex rel. Fetters v. Hott, 173 W. Va. 502, 318 S.E.2d 446
(1984). In the present case, we believe that upon the lower
court's imposition of a five year probationary period and a twelve
month sentence with only five months and twenty-nine days to be
served, the one-third calculation enunciated in the statute must be
interpreted to limit the period of incarceration to four months,
one-third of the twelve months permitted by statute.
While this case has raised an issue of interpretation of West
Virginia Code § 62-12-9(4), we do not believe it to be a
complicated matter of statutory construction.See footnote 4 A sentencing court
cannot be permitted to circumvent legislative intent regarding
limitation of periods of incarceration in conjunction with
probation. In sentencing an offender, a court may either sentence
the individual to a period of incarceration or place the
individual on probation. If the court wishes to probate with a
period of incarceration as a condition of that probation, West
Virginia Code § 62-12-9(4) must be followed.See footnote 5 In this case, the
lower court clearly spoke through its order by placing the
Appellant on probation and imposing incarceration as a condition of
probation. The lower court failed to take advantage of its
opportunity to clarify the disposition when the parties returned
before it for a reconsideration hearing. Therefore, in
interpreting the order as it stands, we find that the lower court
exceeded the maximum time of incarceration allowable as a condition
of probation, and we remand this matter with directions to enter an
order limiting the incarceration condition to the period allowed by
law.
Reversed and remanded.
Footnote: 1While this statute was amended in 1992, the amendment had no effect upon the cited portions. Footnote: 2The circuit court did not, however, even amend its order to reflect this apparent conception. Consequently, having held that a court speaks through its orders, we are left to decide this case within the parameters of the circuit court's order. State ex rel. Erlewine v. Thompson, 156 W. Va. 714, 718, 207 S.E.2d 105, 107 (1973); See State v. Flint, 171 W. Va. 676, 679 n.1, 301 S.E.2d 765, 768 n.1 (1983); Footnote: 3The Appellant initially argued to the trial court that any sentence would be inappropriate since the sentence available upon a battery conviction is not more than twelve months, i.e. no minimum period. However, the Appellant also argued that when the sentence of twelve months was imposed, that twelve month period could possibly be considered the "minimum" upon which the one-third of the time period could be calculated. We believe that in order to give any effect to the language of the statute, the latter option must be adopted, and the twelve-month time period must be the basis for the one-third calculation. Footnote: 4The State has agreed that if West Virginia Code § 62-12-9(4) controls, the Appellant is only subject to a four-month period of incarceration. Footnote: 5We note parenthetically that the lower court could legitimately have accomplished what was apparently its purpose by sentencing the defendant to a period of incarceration and subsequently granting a motion for reconsideration (assuming such a motion was filed in a timely fashion) after whatever portion of the sentence it deemed appropriate had passed, then suspending the further execution of that sentence and placing the defendant on probation with no additional incarceration. West Virginia Rule of
Criminal Procedure 35(b) provides for such reduction in sentence and specifically allows for "[c]hanging a sentence from a sentence of incarceration to a grant of probation. . . ." When incarceration is ordered as a condition of probation, however, West Virginia Code § 62-12-9(4) governs.
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