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IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2006 Term
___________
No. 32855
___________
STATE OF WEST VIRGINIA
Plaintiff Below, Appellee
v.
GARY INSCORE,
Defendant Below, Appellant
________________________________________________________
Appeal from the Circuit Court of Mercer County
Hon. Derek C. Swope, Judge
Case Nos. 99-F-214 & 254 K
AFFIRMED
________________________________________________________
Submitted: April 12, 2006
Filed: June 26, 2006
Darrell V. McGraw, Jr. R. Thomas Czarnik, Esq.
Attorney General
Princeton, West Virginia
Kelley M. Goes
Attorney for Appellant
Assistant Attorney General
Charleston, West Virginia
Attorneys for Appellee
JUSTICE STARCHER delivered the Opinion of the Court.
SYLLABUS BY THE COURT
1. “When reviewing the findings of fact and conclusions of law of a circuit
court sentencing a defendant following a revocation of probation, we apply a three-pronged
standard of review. We review the decision on the probation revocation motion under an
abuse of discretion standard; the underlying facts are reviewed under a clearly erroneous
standard; and questions of law and interpretations of statutes and rules are subject to a
de
novo review.” Syllabus Point 1,
State v. Duke, 200 W.Va. 356, 489 S.E.2d 738 (1997)
.
2. “Interpreting a statute or an administrative rule or regulation presents
a purely legal question subject to de novo review.” Syllabus Point 1, Appalachian Power Co.
v. State Tax Department of West Virginia, 195 W.Va. 573, 466 S.E.2d 424 (1995).
3. The Agreement on Detainers, W.Va. Code, 62-14-1[1971] is a congressionally-sanctioned interstate compact within the Compact Clause, U.S. Const., Art.1,
§ 10, cl. 3, and thus is a federal law subject to federal construction.
4. “When a statute is clear and unambiguous and the legislative intent is
plain, the statute should not be interpreted by the courts, and in such case it is the duty of the
courts not to construe but to apply the statute.” Syllabus Point 5, State v. General Daniel
Morgan Post No. 548, Veterans of Foreign Wars, 144 W.Va. 137, 107 S.E.2d 353 (1959).
5. A detainer based on a violation of probation is not included in “untried
indictments, informations or complaints” within the meaning of the Agreement on Detainers,
contained in W.Va. Code, 62-14-1[1971].
6. W.Va. Code, 62-3-21 [1959] has no application to probation revocation
proceedings.
7. “In order to sustain and extend the jurisdictional authority to revoke
probation subsequent to the expiration of the probationary period, the probationer must at
least be charged with the probation violation prior to such expiration. Where no such charges
are brought prior to the expiration of the probationary term, jurisdiction does not continue
beyond the date of such expiration.” Syllabus Point 2, Mangus v. McCarty, 188 W.Va. 563,
425 S.E.2d 239 (1992).
8. Where a defendant is incarcerated in another state and prosecuting
authorities in West Virginia wish to proceed with probation revocation proceedings, it is a
sufficient exercise of due diligence for the prosecuting attorney to invoke the detainer
process and to cause one or more bench warrants to issue for the defendant's arrest as a
means of notifying the defendant of the pendency of the petition to revoke probation.
9. Where a defendant is incarcerated in another state and the prosecuting
authorities in West Virginia wish to proceed with probation revocation proceedings, it is a
sufficient exercise of due diligence for the prosecuting attorney to bring the defendant before
the West Virginia court for a probation revocation hearing within a reasonable time
following the conclusion of his sentence in the asylum state.
Starcher, J.:
The appellant, Gary Inscore, plead guilty in West Virginia to three felony
offenses. He was sentenced under the Youthful Offenders Act to the Anthony Correctional
Center. After successfully completing the program at the Anthony Center, the appellant was
placed on probation for three years. While on probation, the appellant was arrested in
Virginia and ultimately sentenced to serve a three-year sentence in Virginia.
A West Virginia probation officer filed a petition to revoke appellant's
probation, and the prosecuting attorney filed a detainer with the Virginia corrections
authorities and subsequently caused several bench warrants to be issued for the appellant's
arrest. No further action was taken until the appellant completed his term of confinement in
Virginia.
By the time the appellant was brought before the West Virginia circuit court
for a hearing on the petition to revoke probation, his West Virginia probation period had
expired. Appellant moved for dismissal of the petition which was denied by the circuit court,
and the original West Virginia sentence was imposed. It is from this order that the appellant
appeals.
For the reasons stated herein, we affirm.
I.
Facts & Background
On October 13, 1999 , the appellant, Gary Inscore, was indicted by the Mercer
County grand jury. One indictment contained thirteen counts that included breaking entering
and petit larceny. A second indictment contained nine counts that included attempting to
purchase goods using a false credit card, purchasing goods by the use of a false or fictitious
credit card, and forgery of a credit card. On February 29, 2000, pursuant to a plea agreement,
the appellant plead guilty to two counts of breaking and entering and one count of purchasing
goods by use of a false or fictitious credit card.
On May 1, 2000, the appellant was sentenced to indeterminate sentences of not
less than one year and not more than ten years on each of the breaking and entering charges,
these sentences to be served consecutively. The appellant was also sentenced on the credit
card charge for a term of not less than one year and not more than ten years to be served
concurrently with the breaking and entering sentences.
Because the appellant was eligible to be sentenced under the Youthful Offender
Act, the circuit court suspended the sentences and committed the appellant to the Anthony
Correctional Center for at least six months.
(See footnote 1)
On March 16, 2001, after successfully completing the Anthony Correctional
Center program, the appellant was returned to the circuit court. The circuit court continued
the appellant's suspended sentence, and placed the appellant on probation for three years.
The terms of probation were the general conditions established by law. The general
conditions under
W.Va. Code, 62-12-9 [2001] include the condition “[t]hat the probationer
may not, during the term of his or her probation, violate any criminal law of this or any other
state or of the United States.” Appellant's probation was to expire on March 16, 2004.
(See footnote 2)
On May 4, 2001, less than two months after the appellant was released on
probation, appellant was arrested in Virginia on aggregate bad check and worthless check
charges, both felonies. On June 11, 2002, the appellant was found guilty in a Virginia court
and was sentenced to eight years of incarceration, of which five years were suspended.
On March 4, 2002, after the appellant was arrested in Virginia, but before he
was convicted in Virginia, appellant's West Virginia probation officer petitioned the West
Virginia circuit court to revoke appellant's West Virginia probation. The petition was filed
prior to the date on which appellant's probation was set to expire. Multiple bench warrants
were issued for the arrest of the appellant beginning March 1, 2002, and ending with a bench
warrant being served on the appellant on September 7, 2004, upon his return to West
Virginia.
(See footnote 3) The orders entered by the circuit court for the issuance of bench warrants
indicated on their face that they were being issued for the pending petition to revoke
probation.
In addition to the bench warrants, on October 24, 2002, while the appellant was
incarcerated in Virginia, the West Virginia prosecuting attorney requested that the Virginia
Department of Corrections lodge a detainer against the appellant.
(See footnote 4)
On August 19, 2004, after completion of his Virginia sentence, the appellant
waived extradition to appear at his West Virginia probation revocation hearing.
On September 7, 2004, after the appellant had been transported to West
Virginia, he was arrested on a bench warrant issued pursuant to the probation revocation
proceedings. On October 8, 2004, the circuit court conducted an evidentiary hearing on the
petition to revoke probation. Appellant's counsel made a motion to dismiss the petition; the
motion was denied. Appellant's probation was revoked and the original sentence was
reinstated.
It is from the October 8, 2004 order that the appellant appeals.
The appellant asserts that the circuit court erred in denying appellant's motion
to dismiss the petition to revoke appellant's probation which had expired seven months prior
to the probation revocation hearing date.
II.
Standard of Review
Before addressing the merits of the appellant's contentions, we examine the
standard of review. We stated in Syllabus Point 1 of State v. Duke, 200 W.Va. 356, 489
S.E.2d 738 (1997):
When reviewing the findings of fact and conclusions of law of
a circuit court sentencing a defendant following a revocation of
probation, we apply a three-pronged standard of review. We
review the decision on the probation revocation motion under an abuse of discretion standard; the underlying facts are reviewed
under a clearly erroneous standard; and questions of law and
interpretations of statutes and rules are subject to a de novo review.
Since the instant case involves, in part, the interpretation of the Agreement on
Detainers, W.Va. Code, 62-14-1 [1971], Syllabus Point 1 of Appalachian Power Co. v. State
Tax Department, 195 W.Va. 573, 466 S.E.2d 424 (1995), which held that “[i]nterpreting a
statute or an administrative rule or regulation presents a purely legal question subject to de
novo review” is also applicable.
Further, this Court has recognized that “[a]s the United States Supreme Court
has stated, '[t]he Agreement [on Detainers] is a congressionally sanctioned interstate
compact within the Compact Clause, U.S. Const., Art.1, § 10, cl. 3, and thus is a federal law
subject to federal construction.'” State v. Somerlot, 209 W.Va. at 128, 554 S.E.2d at 55
(quoting Carchman v. Nash, 473 U.S. 716, 719, 105 S.Ct. 3401, 3403, 87 L.Ed.2d 516, 520
(1985)).
Finally, with respect to standards of review, we stated in Syllabus Point 5 of State v. General Daniel Morgan Post No. 548, Veterans of Foreign Wars, 144 W.Va. 137,
107 S.E.2d 353 (1959):
When a statute is clear and unambiguous and the legislative
intent is plain, the statute should not be interpreted by the courts,
and in such case it is the duty of the courts not to construe but to
apply the statute.
With these principles in mind we now examine the appellant's contentions.
III.
Discussion
We turn first to the issue of whether the Agreement on Detainers, W.Va. Code,
62-14-1 [1971] (the “Agreement”) has any application to the facts of this case. The appellant
asserts among other things that because the prosecuting attorney took no action on the
detainer within the time periods prescribed in the Agreement, the petition to revoke probation
should be dismissed. We disagree.
W.Va. Code, 62-14-1 [1971], Article I of the Agreement states:
The party states find that charges outstanding against a prisoner,
detainers based on untried indictments, informations or
complaints, and difficulties in securing speedy trial of persons
already incarcerated in other jurisdictions, produce uncertainties
which obstruct programs of prisoner treatment and
rehabilitation. Accordingly, it is the policy of the party states
and the purpose of this agreement to encourage the expeditious
and orderly disposition of such charges and determination of the
proper status of any and all detainers based on untried
indictments, informations or complaints. The party states also
find that proceedings with reference to such charges and
detainers, when emanating from another jurisdiction, cannot
properly be had in the absence of cooperative procedures. It is
the further purpose of this agreement to provide such
cooperative procedures.
(Emphasis added.)
In 1971 the West Virginia Legislature enacted the Agreement on Detainers as W.Va. Code, 62-14-1 pursuant to the Compact Clause of the U. S. Constitution, Art. 1, § 10,
cl. 3, and congressional authorization. Nearly all fifty states have likewise enacted a version
of the Agreement. In looking to federal construction and interpretation, we consider Carchman, v. Nash, 473 U.S.716, 105 S.Ct. 3401, 87 L.Ed.2d 516 (1985), to be dispositive
of whether the time periods provided in the Agreement are applicable to the facts of the case
before this Court.
In Carchman, the defendant pled guilty in New Jersey to charges of breaking
and entering and assault. He was sentenced to two consecutive terms of eighteen months.
The New Jersey court suspended two years of the sentences and imposed a two-year term of
probation following imprisonment. While on probation, the defendant was arrested in
Pennsylvania for additional crimes, convicted and subsequently sentenced.
While awaiting trial on the Pennsylvania charges, New Jersey court officers
notified the Pennsylvania court that the defendant had violated the terms and conditions of
his New Jersey probation by committing offenses in Pennsylvania. A bench warrant was
issued by the New Jersey court and lodged as a detainer with the correctional officials in
Pennsylvania. The defendant then began sending a series of letters to the New Jersey
officials requesting final disposition of the probation revocation proceedings. When the
revocation proceedings did not occur withing the 180-day time period as provided by Article
III of the Agreement, (See footnote 5) the defendant filed a writ of habeas corpus based upon noncompliance
with the Agreement.
The facts of Carchman, supra, are squarely on point with the undisputed facts
presented in this appeal. The Court in Carchman stated:
The language of the Agreement therefore makes clear that the
phrase “untried indictment, information or complaint” in Art. III
refers to criminal charges pending against a prisoner. A
probation-violation charge, which does not accuse an individual
with having committed a criminal offense in the sense of
initiating a prosecution, thus does not come within the terms of
Art. III. Although the probation-violation charge might be
based on the commission of a criminal offense, it does not result
in the probationer's being “prosecuted” or “brought to trial” for
that offense. Indeed, in the context of the Agreement, the
probation-violation charge generally will be based on the
criminal offense for which the probationer already was tried and
convicted and is serving his sentence in the sending state.
. . .
We therefore conclude from the language of the agreement that
a detainer based on a probation-violation charge is not a detainer
based on “any untried indictment, information or complaint,”
within the meaning of Art. III.
Appellant had no “untried indictments, informations or complaints” pending
against him. We, therefore, hold that a detainer based on a violation of probation is not
included in “untried indictments, informations or complaints” within the meaning of the
Agreement on Detainers, contained in W.Va. Code, 62-14-1 [1971].
In the context of the Agreement, the appellant also asserts the application of W.Va. Code, 62-3-21 [1959], (See footnote 6) the three-term rule. The language of W.Va. Code, 62-3-21
[1959] is clear and unambiguous. This statute applies to “[e]very person charged by
presentment or indictment with a felony or misdemeanor, and remanded to a court of
competent jurisdiction for trial . . ..” As the Agreement in W.Va. Code, 62-14-1 [1971]
contemplates a defendant yet to be tried, W.Va. Code, 62-3-21 [1959] likewise contemplates
the same. Neither are applicable to an already-convicted person who has been sentenced,
placed on probation and subsequently charged with a violation of probation and facing a
revocation of probation hearing.
Therefore, using the same reasoning as the Court used in Carchman, supra, we
hold that W.Va. Code, 62-3-21 [1959] has no application to probation revocation
proceedings.
The appellant also asserts that the delay in conducting the probation revocation
hearing violates the appellant's constitutional right to a speedy trial. (See footnote 7) In response to this
assertion, we consider the reasoning in the case of Moody v. Daggett, 429 U.S. 78, 97 S.Ct.
274, 50 L.Ed.2d 236 (1976) to be instructive.
In Moody, the petitioner committed a crime while on parole. Soon after the
petitioner's incarceration for new crimes, a parole violator warrant was issued but not
executed. The warrant was lodged with prison officials as a detainer. The parole board took
the position that it would not execute the warrant until the petitioner completed his sentence
for his new crime. The petitioner filed a habeas corpus action on the grounds that he had
been denied the right to a prompt hearing. The Court held that the petitioner was not
constitutionally entitled to a prompt parole revocation hearing. In Moody, the Court reasoned
that:
. . . [T]here is a practical aspect to consider, for in cases such as
this, in which the parolee admits or has been convicted of an
offense plainly constituting a parole violation, the only
remaining inquiry is whether continued release is justified
notwithstanding the violation. This is uniquely a “prediction as
to the ability of the individual to live in society without
committing antisocial acts.” Morrissey v. Brewer, 408 U.S. AT
480, 92 S.Ct. at 2599, 33 L.Ed.2d. at 493 (1972) In making this
prophecy, a parolee's institutional record can be perhaps one of
the most significant factors. Forcing decision immediately after
imprisonment would not only deprive the parole authority of this
vital information, but since the other most salient factor would
be the parolee's recent convictions, here a double homicide, a
decision to revoke parole would often be foreordained. Given
the predictive nature of the hearing, it is appropriate that such
hearing be held at the time at which prediction is both most
relevant and most accurate at the expiration of the parolee's
intervening sentence.
Moody v. Daggett, 429 U.S. at 89, 97 S.Ct. at 279, 50 L.Ed.2d at 245.
A parole revocation hearing to be held at the conclusion of a sentence on
subsequent criminal charges committed while on parole, and a probation revocation hearing
scheduled to be heard after serving a sentence for a subsequent crime while on probation,
represent similar circumstances. Therefore, we believe that the reasoning in Moody, as
applied, also applies to probation revocation hearings.
Finally, we turn now to the appellant's argument that the appellant's probation
was revoked after his term of probation had expired, and that the prosecuting attorney failed
to exercise due diligence to notify the appellant of the petition to revoke probation, and to
secure the appellant's attendance at the revocation hearing.
Revocation of probation procedures are generally governed by
W.Va. Code, 62-
12-10 [1955]
(See footnote 8) and Court decisions issued pursuant thereto. We believe the case of
Mangus
v. McCarty, 188 W.Va. 563, 425 S.E.2d 239 (1992) is controlling on all three of these issues
_ revocation after the probation term had expired, and due diligence on the part of the
prosecutor with respect to notice and timing of the revocation hearing.
In Mangus the defendant received a suspended sentence with three years
probation. The probationary period was scheduled to expire on June 12, 1992. Mangus
traveled to Georgia on a travel permit issued by his probation officer for purposes of
allowing Mangus to obtain employment. The terms of the permit required Mangus to return
to West Virginia by November 28, 1989, to meet with his probation officer. Mangus claimed
that he did, in fact, return to West Virginia in November 1989, but was unable to contact his
probation officer due to the Thanksgiving holiday. Mangus returned to Georgia. Soon after
his return he was informed by letter that he had a new probation officer. No further attempts
were made to contact Mangus until approximately one year later.
On November 21, 1990, Mangus' new probation officer caused a warrant to
be issued for his arrest based upon alleged probation violations, including failure to report
as required by the terms of probation. An apparent lapse of activity then occurred with
respect to the case until July 15, 1992. Ironically, on that day Mangus' mother called the
probation officer and informed the officer that her son had been charged with marijuana
possession in Georgia in July 1990. This information led to the arrest of Mangus in Georgia
for violation of his West Virginia probation. The West Virginia prosecuting attorney,
however, notified Georgia authorities that arrangements could not be made to transfer
Mangus back to West Virginia and that they should release him on bond.
On August 3, 1992, after Mangus returned to West Virginia and almost two
months after his probation should have expired on June 12, 1992, a petition for revocation
of probation was filed.
(See footnote 9) Mangus responded by filing a petition for a writ of prohibition
challenging the circuit court's authority to revoke his probation on the grounds that his
probation period had expired prior to the petition to revoke probation being filed.
We held in Syllabus Point 2 of Mangus, supra, that:
In order to sustain and extend the jurisdictional authority to
revoke probation subsequent to the expiration of the
probationary period, the probationer must at least be charged
with the probation violation prior to such expiration. Where no
such charges are brought prior to the expiration of the
probationary term, jurisdiction does not continue beyond the
date of such expiration.
The Court in Mangus further explained that:
While a hearing on probation violations may be held subsequent
to the probationary period, authorities should use due diligence
in attempting to notify the probationer of the alleged violation
prior to the expiration of the probationary period in order to
extend any right to proceed against the probationer after the
expiration of the probationary period. This approach essentially
creates a two-pronged analysis. The first portion of this analysis
requires an evaluation of jurisdictional issues and the second
portion, a determination regarding matters of proof such as
violation of probation and, if the issue is raised, due diligence of
the state.
Mangus v. McCarty, 188 W.Va. at 568, 425 S.E.2d at 244 (1992) (emphasis added).
In applying these principles to the instant case, we conclude that since the
petition to revoke probation was filed prior to the expiration of the appellant's probation, the
first prong of the analysis is satisfied.
The second prong of the analysis addresses whether or not the prosecuting
attorney exercised due diligence. We cannot say from the facts in this case that the
prosecuting attorney did not exercise due diligence.
In the instant case the prosecuting attorney went further than did the prosecutor
in
Mangus by causing to be issued multiple bench warrants after the filing of the petition to
revoke probation. The prosecuting attorney also invoked the detainer process _ for both
notifying the appellant of the pending petition to revoke probation and for the purpose of
reserving the right to have the appellant returned to West Virginia to face revocation
proceedings.
(See footnote 10) We believe that under these circumstances, sufficient due diligence was
exercised to protect the defendant's right to have notice of the pending action, and the State's
right to proceed with the probation revocation process.
Accordingly, we hold that where a defendant is incarcerated in another state
and prosecuting authorities in West Virginia wish to proceed with probation revocation
proceedings, it is a sufficient exercise of due diligence for the prosecuting attorney to invoke
the detainer process and to cause one or more bench warrants to issue for the defendant's
arrest as a means of notifying the defendant of the pendency of the petition to revoke
probation.
The appellant also argues that due diligence required the prosecuting
authorities to secure the appellant's attendance in a West Virginia court prior to the
expiration of the appellant's sentence by exercising its prerogatives under the Agreement, by
writ of habeas corpus ad prosequendum or extradition. We disagree.
We stated in Mangus, supra, 188 W.Va. at 568, 425 S.E.2d at 244:
Even if notice of probation violations based on the marijuana
charges had been given and jurisdiction had therefore been
extended, the state's lack of due diligence could potentially have
defeated its attempt to revoke Mr. Mangus' probation.
In
Mangus, unlike the instant case, Mangus was not incarcerated and was available for
service of process. Further, the West Virginia prosecuting authorities in
Mangus took no
action whatsoever for approximately one year after Mangus' first violation of probation.
(See footnote 11) This failure to act was further exacerbated by the failure of the prosecuting authorities to take
any action on the case until after Mangus' mother informed the probation officer of Mangus'
criminal activity that occurred approximately two years earlier.
In the instant case the appellant was brought before the West Virginia circuit
court within a reasonable time after the appellant completed his Virginia sentence.
(See footnote 12) We
believe that under the circumstances of the instant case the prosecutor satisfied the due
diligence requirement of
Mangus by proceeding with the probation revocation hearing within
a reasonable time following the appellant's completion of his Virginia sentence.
Therefore, we hold that where a defendant is incarcerated in another state and
the prosecuting authorities in West Virginia wish to proceed with probation revocation
proceedings, it is a sufficient exercise of due diligence for the prosecuting attorney to bring
the defendant before the West Virginia court for a probation revocation hearing within a
reasonable time following the conclusion of his sentence in the asylum state.
IV.
Conclusion
Based upon the foregoing, we affirm the circuit court.
Appellant's counsel for this appeal was first appointed at the time the appellant was
returned to Mercer County from the Anthony Correctional Center. Appellant's previous
attorney had retired and was not available for the hearing. Counsel commented in his brief
about his appointment as counsel, stating that, “I never opened a file nor submitted a voucher
for payment on the 10 minute proceeding.”
Footnote: 3 The record reflects that bench warrants were issued for the arrest of the appellant on
the following dates: March 1, 2002, February 18, 2003, June 16, 2003, October 20, 2003,
February 17, 2004, June 22, 2004 and September 7, 2004.
Footnote: 4 A detainer in the context of this case is an administrative mechanism to assure that
an inmate subject to an unexpired term of confinement in another jurisdiction will not be
released from custody until the jurisdiction requesting custody has had an opportunity to take
the inmate into custody. The detainer is a matter of comity.
The following is the text of the detainer letter:
October 24, 2002
Virginia Department of Corrections
Detainer Section
Attn. Gloria McGuire
P.O. Box 26963
Richmond, VA 23261
Re: State of West Virginia vs. Gary Stephen Inscore, Jr.
Mercer County Felony Nos. 99-FE-214-K & 99-FE-254-K
Dear Ms. McGuire:
Enclosed please find a certified copy of the indictments
and Warrants for Arrest of Defendant, which are pending in
Mercer County, West Virginia, against the above named
individual, for the offense of “Attempt to Purchase Goods by the
Use of a False or Fictitious Credit Card; Purchase Goods by the
Use of a False or fictitious Credit Card; and Forgery of a Credit
Card.” Would you please lodge a Detainer against this
individual and advise our office as least fifteen (15) days prior
to their release from your institution? If the defendant is placed
at another facility, would you please forward same to that
facility?
If you have any questions or comments, please contact
me at the above number or address. Thank you for your
cooperation in this matter.
Very truly yours,
William J. Sadler
Prosecuting Attorney
Mercer County, West Virginia
WJS/mpb
Enclosure
cc: Court file
Andrew Maier
A copy this letter was sent to an attorney in the office of the Mercer County Public Defender,
who was not appellant's attorney at the hearing at which the appellant was placed on West
Virginia probation.
Footnote: 5 Both New Jersey and Pennsylvania had adopted the Agreement on Detainers that has
been adopted by the West Virginia Legislature and included in
W.Va. Code, 62-14-1 [1971].
Footnote: 6 W.Va. Code, 62-3-21 [1959] states:
Every person charged by presentment or indictment with a
felony or misdemeanor, and remanded to a court of competent
jurisdiction for trial, shall be forever discharged from
prosecution for the offense, if there be three regular terms of
such court, after the presentment is made or the indictment is
found against him, without a trial, unless the failure to try him
was caused by his insanity; or by the witnesses for the State
being enticed or kept away, or prevented from attending by
sickness or inevitable accident; or by a continuance granted on
the motion of the accused; or by reason of his escaping from jail,
or failing to appear according to his recognizance, or of the
inability of the jury to agree in their verdict; and every person
charged with a misdemeanor before a justice of the peace, city
police judge, or any other inferior tribunal, and who has therein
been found guilty and has appealed his conviction of guilt and
sentence to a court of record, shall be forever discharged from
further prosecution for the offense set forth in the warrant
against him, if after his having appealed such conviction and
sentence, there be three regular terms of such court without a
trial, unless the failure to try him was for one of the causes
hereinabove set forth relating to proceedings on indictment.
trial, unless the failure to try him was for one of the causes
hereinabove set forth relating to proceedings on indictment.
Footnote: 7
W.Va. Const., Art. III, § 1 states:
Trials of crimes, and misdemeanors, unless herein otherwise
provided, shall be by a jury of twelve men, public, without
unreasonable delay, and in the county where the alleged offence
was committed, unless upon petition of the accused, and for
good cause shown, it is removed to some other county. In all
such trials, the accused shall be fully and plainly informed of the
character and cause of the accusation, and be confronted with
the witness against him, and shall have the assistance of counsel,
and a reasonable time to prepare for his defence; and there shall
be awarded to him compulsory process for obtaining witnesses
in his favor.
Footnote: 8
W.Va. Code, 62-12-10 states:
If at any time during the period of probation there shall be
reasonable cause to believe that the probationer has violated any
of the conditions of his probation, the probation officer may
arrest him with or without an order or warrant, or the court
which placed him on probation, or the judge thereof in vacation,
may issue an order for his arrest, whereupon he shall be brought
before the court, or the judge thereof in vacation, for a prompt
and summary hearing. If it shall then appear to the satisfaction
of the court or judge that any condition of probation has been
violated, the court or judge may revoke the suspension of
imposition or execution of sentence, impose sentence if none
has been imposed, and order that sentence be executed. In
computing the period for which the offender is to be imprisoned,
the time between his release on probation and his arrest shall not
be taken to be any part of the term of his sentence. If, despite a
violation of the conditions of probation, the court or judge shall
be of the opinion that the interests of justice do not require that
the probationer serve his sentence, the court or judge may,
except when the violation was the commission of a felony, again
release him on probation.
Footnote: 9
The notice of hearing included the following violations of probation:
1) failure to make written reports to the probation office from
February 1990 to June 1992; 2) absence from this state without
authority from December 1989 to June 1992 (Mr. Mangus'
authority to be out of West Virginia had expired in November
1989); 3) failure to report in person from November 1989 to
June 1992; 4) failure to pay all court costs; 5) violation of laws
of Georgia by possession of marijuana; 6) and, the act of
possession of marijuana.
Mangus v. McCarty, 188 W.Va. at 565, 425 S.E.2d at 241 (1992).
Footnote: 10 The better practice in invoking the detainer process would be to include as an
attachment to the detainer letter, a copy of the petition to revoke probation and a statement
requesting that the asylum state's correction authorities deliver a copy of the petition to the
defendant.
Footnote: 11 November 21, 1990, is the date on which a warrant was issued for Mangus' arrest.
When the warrant was issued the alleged violations included failure to contact the probation
officer, failure to file reports, and failure to return to West Virginia.
Footnote: 12
Appellant waived extradition in August 19, 2004, the West Virginia arrest warrant
was executed in September 7, 2004, and the probation revocation hearing was conducted on
October 8, 2004.