
    State Ex Rel. Donald Howell v. Otto C. Boles, Warden, West Virginia Penitentiary
    (No. 12401)
    Submitted February 2, 1965.
    Decided February 23, 1965.
    
      J. Brooks Lawson, Jr., for relator.
    
      C. Donald Robertson, Attorney General, George H. Mitchell, Assistant Attorney General, for respondent.
   Berry, Judge:

The 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.

After 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.

The petitioner in this proceeding seeks relief from the additional five years sentence imposed upon him by the Circuit Court 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.

The 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.

Prisoner remanded.  