State Ex Rel. Faircloth v. Catlett

267 S.E.2d 736, 165 W. Va. 179, 1980 W. Va. LEXIS 531

• Court: West Virginia Supreme Court
• Decided: July 8, 1980
• Docket: 14820
• Status: Published

Opinions

Harshbarger, Justice:

We wrote about post-conviction bail for armed robbery defendants in Conley v. Dingess, 162 W.Va. 414, 250 S.E.2d 136 (1978). We have reconsidered the question, and overrule Conley so far as it is inconsistent with this opinion.

Rodney Lee Faircloth was indicted for aiding and abetting armed robbery. He was released on $5,000 bail before trial. After a jury verdict of guilty, he was sentenced to a term of ten years in the penitentiary, and his court-appointed counsel moved for post-conviction bail pending appeal. The trial court denied the motion, relying on Conley’s interpretation that W. Va. Code, 62-lC-l(b), prohibited grant of post-conviction bail for persons convicted of armed robbery, inasmuch as they were subject to life imprisonment. (Aiding and abetting armed robbery is punishable to the same extent as is commission of armed robbery. Code, 61-11-6; State v. CJ.S., _ W.Va. _, 263 S.E.2d 899 (1980).

In 1965, our Legislature changed the bail statute to include a mandatory right to have bail set before conviction for persons charged with crimes not punishable by death or life imprisonment. Code 62-lC-l(a); State ex rel. Ghiz v. Johnson, 155 W.Va. 186, 183 S.E.2d 703 (1971). And post-conviction bail rights are in §62-lC-l(b):

Bail may be allowed pending appeal from a conviction for an offense not punishable by death or life imprisonment.

And in Conley, supra 250 S.E.2d, at 137, we held “that if an offense is punishable (not punished) by life imprisonment, bail will not be allowed pending an appeal from a conviction.”

Our criminal code prescribes punishment for every statutory crime, and with few exceptions, they are punished by indeterminate sentences with specific minimum and maximum years. Code 61-11-16; Brown, West Virginia Indeterminate Sentence and Parole Laws, 59 W. Va. L.R. 143 (1957). However, determinate life sentences are required for treason, first-degree murder, kidnapping, and certain offenses by prisoners, Code 61-1-2; 61-2-2; 61-2-14a; 62-8-2: these crimes are certainly “punishable by life imprisonment”. Armed robbery, some acts of kidnapping, and embezzlement are crimes for which there may be determinate sentences. Code 61-2-12; 61-2-14a; 61-3-20.

A convicted robber may be confined to the penitentiary for “not less than ten years.” Code 61-2-12. An indeterminate sentence for armed robbery is invalid,¹ and imposition of determinate sentences of ten years or more is within the trial court’s discretion. Vascovich v. Skeen, 138 W.Va. 417, 424, 76 S.E.2d 283 (1953), cert. denied, 346 U.S. 916, 74 S.Ct. 277, 98 L.Ed. 411.

There is no doubt that a convicted armed robber may be punished by a fixed term of life imprisonment, Conley v. Dingess, supra, Syllabus Point 2; but that does not mean that armed robbery is an offense punishable by life imprisonment within the meaning of Code 62-lC-l(b). It is punishable by a term of not less than ten years, which may be any number of years from ten to life. The Legislature chose not to deprive trial courts of discretion to determine the appropriate specific number of years of punishment for armed robbery, beyond ten.

The structural differences in the statutory language setting punishments for crimes that are punishable by confinement for life, and the armed robbery statute; the rule that criminal statutes must be strictly construed, State v. Cole, 160 W.Va. 804, 238 S.E.2d 849 (1977), State v. Riley, 158 W.Va. 823, 215 S.E.2d 460 (1975), State ex rel. Carson v. Wood, 154 W.Va. 397, 175 S.E.2d 482 (1970), Dials v. Blair, 144 W.Va 764, 111 S.E.2d 17 (1959), State v. Pyles, 86 W.Va. 636, 104 S.E. 100 (1920); and our remedial bail statute, prompt us to conclude that unless a term of life imprisonment has been imposed by a court upon a convicted armed robber, a trial judge has the discretion to grant post-conviction bail.²

We remand the action to the Circuit Court to determine whether bail should be allowed.

Writ granted as moulded.

1 State ex rel. Wright v. Boles, 150 W.Va. 381, 146 S.E.2d 524 1966); State v. Slider, 156 W.Va. 653, 196 S.E.2d 85 (1973), Syllabus Point 2; State v. Chaffin, 156 W.Va. 264, 192 S.E.2d 728 (1972), Syllabus Point 5.

2 See State ex rel. Hutzler v. Dostert, _ W. Va. _, 236 S.E.2d 336, 339 (Miller, J., concurring); Conley, supra 250 S.E.2d, at 138 (Miller, J., dissenting).