Elmer Ervin Riddle, Appellant, v. Ira M. Coiner, Warden of the West Virginia State Penitentiary, Appellee, 432 F.2d 925 (4th Cir. 1970)
Annotate this CaseDecided October 23, 1970
Louis Schoolnic, Fairmont, W. Va. (Court-assigned counsel), for appellant.
Cheryl Ann Wheeler, Asst. Atty. Gen. of W. Va. (Chauncey H. Browning, Jr., Atty. Gen. of W. Va., George E. Lantz, Deputy Atty. Gen., and Willard A. Sullivan, Asst. Atty. Gen., on the brief), for appellee.
Before BRYAN, CRAVEN, and BUTZNER, Circuit Judges.
PER CURIAM:
It has been settled by the Supreme Court of West Virginia that a court record reciting that a recidivist has been "duly cautioned" is merely a "* * * conclusion instead of a statement of fact * * *" and is itself insufficient, when questioned, to establish the necessary warning to a recidivist. State ex rel. Beckett v. Boles, 149 W.Va. 112, 138 S.E.2d 851, 856 (1964).
Where, as here, the petitioner denies he was warned, and there is no contrary evidence other than expressions of opinion that it was the judge's invariable practice, we think the petitioner has sustained his burden. Without the warning it is clear that an additional sentence for recidivism is void. State ex rel. Robb v. Boles, 148 W.Va. 641, 136 S.E.2d 891 (1964). On remand the district court will issue the writ.
Reversed.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
