# Jett v. Leverette > West Virginia Supreme Court · September 22, 1978 · 162 W. Va. 140 URL: https://www.frixlaw.com/law-library/cases/9585788 ## Case - **Full name:** Danny Bruce Jett v. Bobby Leverette, Superintendent, West Virginia Penitentiary - **Court:** West Virginia Supreme Court - **Decided:** September 22, 1978 - **Citations:** 162 W. Va. 140; 247 S.E.2d 469 - **Precedential status:** Published - **Opinion:** Dissent by McGraw - **Judges:** McGraw, Miller - **Cited by:** 22 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9585788 ## How later opinions describe it (automated extraction) - finding that “when either the statutory maximum or the shorter term has been served, the court no longer has jurisdiction to revoke probation” ## Opinion text McGraw, Justice, dissenting: I respectfully dissent from the majority opinion for the reason that it draws distinctions between probation and parole where no material differences exist. Probation, parole and incarceration are restraints upon liberty 1 imposed as a punishment for crime. The conditions of probation or parole as found in Chapter 62 of the West Virginia Code are fundamentally the same. 2 I acknowledge that probation and parole are not technically identical because probation is granted prior to any imprison *149 ment while parole commences only after part of a sentence of imprisonment has been served. I cannot agree, however, that the functional difference between them are relevant for the purposes of the underlying principles established in Conner v. Griffith, _ W. Va. _, 238 S.E.2d 529 (1977). Conner established, for the purposes of this state’s Double Jeopardy Clause, W. Va. Const., Art. 3, § 5, that parole involves such a significant restriction on individual liberty that it constitutes punishment. Probation is essentially the same as parole with respect to the extent it restricts one’s individual liberty. The majority opinion, which does not attempt to distinguish the two in this respect, serves only to indicate their fundamental similarity. Indeed, even the respondent confessed error in this proceeding because parole and probation constitute similar restrictions on individual liberty. This Court says in Conner at 534 that: Our decision is part of an increasing trend in both federal and state courts to apply substantive constitutional standards of double jeopardy or equal protection to forbid the withdrawal of time spent in custody from the underlying sentence. Unquestionably time on probation is “time spent in custody.” Earlier in Conner the Court, at 543, comments that: Time spent serving a sentence does not depend on the manner or location in which it is served. There are, to be sure, different degrees of confinement recognized in any penal system. The fact that some confinements are less restrictive than others should have no bearing in computing the time served on the sentence. Furthermore, it is obvious that if probation or parole is not revoked, the time served under these less restrictive conditions will count on the sentence. State v. Shawyer, 154 W. Va. 522 , 117 S.E.2d 25 (1970). It is difficult to perceive why, if *150 the time served counts where there is no violation, the same time served until the violation should not also count. Interestingly, the majority in syllabus point one of the instant case recognizes that probation is a sentence. When an ordinary citizen looks at the government which restrains as a punishment for crime, he would see but a unitary form, not those studied distinctions between judicial and executive branches or those other distinctions seen so clearly by lawyers and this Court. There is to the citizen, and in common sense, no distinction in the character of restraint imposed by probation or parole. The law, to maintain its integrity, should make sense to laymen. Laymen will simply be perplexed at the ability of this Court to draw legalistic distinctions where no fundamental differences exist. Some lawyers, however, will be reassured to know that this Court still has an ability to count the number of angels that can dance on the head of a pin. I am authorized to say that my brother Harshbarger, to this dissent, says Amen. “The term ‘liberty’ as used in the Constitution is not dwarfed into mere freedom from physical restraint of the person of the citizen as by incarceration, but is deemed to embrace the right of man to be free in the enjoyment of the faculties with which he has been endowed by his Creator, subject only to such restraints as are necessary for the common welfare. Liberty, in its broad sense, as understood in this country, means the right not only of freedom from servitude, imprisonment or restraint, but the right of one to use his faculties in all lawful ways, to live and work where he will, to earn his livelihood in any lawful calling, and to pursue any lawful trade or avocation.” People v. Gillson, 109 N.Y. 398 , as quoted in Lawrence v. Barlow, 77 W. Va. 289, 292 , 87 S.E. 380, 381 (1915). See footnotes 5 and 6 of the majority opinion. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9585788. Public record. Not legal advice.