
    State Of West Virginia v. Rodney P. Duncan
    (No. 15042)
    Decided December 18, 1981.
    
      Randall L. Trautwein for appellant.
    
      Chauncey H. Browning, Attorney General, Dennis M. Abrams, Assistant Attorney General, for appellee.
   Harshbarger, Chief Justice:

Rodney Duncan was indicted by a Cabell County grand jury for one count of armed robbery. On September 4, 1980, the trial court accepted Duncan’s informed plea to unarmed robbery. He was sentenced on September 12 to confinement in a state penitentiary for not less than five nor more than eighteen years. The trial judge stated at that time that W.Va. Code, 62-12-2(b)(1979), made Duncan ineligible for probation, but if he had been eligible, there would have been a different sentence.

Code 62-12-2, our probation eligibility statute, was amended in 1979 to include:

(b) The provisions of subsection (a) of this section to the contrary notwithstanding, any person who commits or attempts to commit a felony with the use, presentment or brandishing of a firearm shall be ineligible for probation. Nothing in this section shall apply to an accessory before the fact or a principal in the second degree who has been convicted as if he were a principal in the first degree if, in the commission of or in the attempted commission of the felony, only the principal in the first degree used, presented or brandished a firearm.

We must decide whether a person indicted for armed robbery, but convicted of unarmed robbery, falls within the class of persons statutorily ineligible for probation. We get further assistance from the statute. Subsection (c) (1979) explains the applicability of 62-12-2(b):

(c) The existence of any fact which would make any person ineligible for probation under subsection (b) of this section because of the commission or attempted commission of a felony with the use, presentment or brandishing of a firearm shall not be applicable unless such fact is (i) found by the court upon a plea of guilty or nolo contendere, or (ii) found by the jury, if the matter be tried before a jury, or (iii) found by the court, if the matter be tried by the court, without a jury. (Emphasis added.)

The trial court twice advised defendant that he probably would not be eligible for probation if he plead guilty to unarmed robbery because of Code 62-12-2. After reviewing the record and relevant Code section, Judge Ferguson concluded: “In reviewing your file and reviewing the facts of this case it is obvious a weapon was, in fact, used during the commission of this robbery.” This finding of fact by the court made Duncan ineligible for probation.

Affirmed. 
      
       For a detailed discussion of the new terminology for the classifications of robbery, see State v. Harless, _ W.Va. _, 285 S.E.2d 461 (1981).
     
      
       This section was amended in 1981, but those amendments are inapplicable to Duncan.
     