Spencer v. Whyte

Miller, Justice:

In this original habeas corpus proceeding, we are asked to determine if our probation statute, W. Va. Code, 62-12-2, can be construed to empower a circuit judge to order a period of incarceration as a condition of probation. We conclude that it cannot.

In June of 1979 the petitioner was indicted for robbery by violence and in a separate two count indictment for conspiracy to commit robbery on two individuals, one of whom was the subject of the robbery indictment. Under a plea bargain agreement, which was approved by the trial court, petitioner agreed to plead guilty to…